Prólogo: O primeiro documento a seguir
é a decisão mais importante até hoje no
caso da UDV-USA.
Eis os fatos mais
importantes sobre a decisão:
1) trata-se de um
pedido para uma “preliminary injunction” trazido pela UDV-USA, cujo vegetal foi
confiscado pelo governo federal. Não houve processo criminal, nem tem sido, até
hoje, um julgamento final sobre o caso. É tudo para decidir se a UDV pode
continuar a praticar sua religião enquanto a corte decide qual será a
disposição final do processo. (Já vai fazer 6 anos que estão neste processo.)
2) o juiz rejeitou os
seguintes argumentos:
a) que o governo não pode permitir que os índios usem peiote sem permitir que a
UDV use vegetal;
b) que o “Controlled Substances Act,” a principal lei de controle às drogas do
país, não se aplica ao ayahuasca;
c) que o First Amendment à Constituição dos EUA protege as práticas da UDV;
d) que a lei internacional exige que o governo permita o uso do vegetal pela
UDV.
3) o juiz aceitou o
argumento de que o governo federal não mostrou que sua proibição ao vegetal foi
feita em acordo com o Religious Freedom Restoration Act de 1993 (passado depois
de uma decisão da Supreme Court que por muito enfraqueceu a liberdade de
religião no país). Esta lei afirma que qualquer lei que impede a liberdade
religiosa tem que: a) responder a um interesse de grande importância do governo
(“compelling interest”) e b) impedir a liberdade da religião em questão do modo
menos restringente (“least restrictive means”).
4) foi uma decisão
importante a favor da UDV, mas já se passaram quase 3 anos e o governo ainda
está recorrendo da decisão a várias cortes; a próxima seria a Supreme Court
5) no final de 2004,
a UDV conseguiu permissão de recomeçar suas sessões com o vegetal. Agora
espera-se a decisão da Supreme court se vai examinar o processo ou não.
Após esse documento,
seguem-se outros que também fazem parte do processo.
O CENTRO ESPIRITA BENEFICIENTE UNIAO DO
VEGETAL (a.k.a. Uniao do Vegetal) (USA) ("UDV-USA"), a New Mexico
Corporation on its own behalf and on behalf of all its members in the United
States, JEFFREY BRONFMAN, individually and as President of UDV-USA,
CHRISTINA BARRETO, individually and as Secretary of UDV-USA, FERNANDO BARRETO,
individually and as Treasurer of UDV-USA, CHRISTINE BERMAN, MITCHEL BERMAN,
JUSSARA de ALMEIDA DIAS, PATRICIA DOMINGO, DAVID LENDERTS, DAVID MARTIN, MARIA
EUGENIA PELAEZ, BRYAN REA, DON ST. JOHN, CARMEN TUCKER, and SOLAR LAW,
individually and as members of UDV-USA, Plaintiffs, v. JOHN ASHCROFT,
Attorney General of the United States, DONNIE R. MARSHALL, Administrator of the
United States Drug Enforcement Administration, PAUL H. O'NEILL, Secretary of
the Department of Treasury of the United States, DAVID IGLESIAS, United States
Attorney for the District of New Mexico, and JOHN O'TOOLE, Resident Special
Agent in Charge of the United States Customs Service Office of Criminal
Investigation in Albuquerque, New Mexico, all in their official capacities,
Defendants.
CIV. No. 00-1647 JP/RLP
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO
282 F. Supp. 2d 1236; 2002 U.S. Dist. LEXIS 26749
August 12, 2002, Filed
SUBSEQUENT HISTORY: Motion denied by, Injunction denied by O Centro
Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 282 F. Supp. 2d 1271, 2002
U.S. Dist. LEXIS 26750 (D.N.M., 2002)
Affirmed by O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342
F.3d 1170, 2003 U.S. App. LEXIS 18373 (10th Cir. N.M., 2003)
Affirmed by, On rehearing at O Centro Espirita Beneficiente Uniao do Vegetal v.
Ashcroft, 2004 U.S. App. LEXIS 23781 (10th Cir. N.M., Nov. 12, 2004)
DISPOSITION: [**1] Plaintiffs' Motion for Preliminary
Injunction denied. Plaintiffs' Motion for Preliminary Injunction granted as to their
claim under the Religious Freedom Restoration Act.
COUNSEL: For O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, aka Uniao
do Vegetal (USA) Inc, JEFFREY BRONFMAN, DANIEL TUCKER, CHRISTINA BARRETO,
FERNANDO BARRETO, CHRISTINE BERMAN, MITCHEL BERMAN, JUSSARA DE ALMEIDA DIAS aka
Jussara Almeida Dias, PATRICIA DOMINGO, DAVID LENDERTS, DAVID MARTIN, MARIA
EUGENIA PELAEZ, BRYAN REA, DON ST JOHN, CARMEN TUCKER, SOLAR LAW, plaintiffs:
John W. Boyd, Esq., Nancy Hollander, Esq., Freedman Boyd Daniels Hollander
Goldberg & Cline, PA, Albuquerque, NM.
For JANET RENO, DONNIE R MARSHALL, LAWRENCE H SUMMERS, NORMAN BAY, JOHN
O'TOOLE, defendants: Raymond Hamilton, Esq., Norman C Bay, Esq, US Attorney's
Office, District of New Mexico, Albuquerque, NM.
For JANET RENO, DONNIE R MARSHALL, LAWRENCE H SUMMERS, NORMAN BAY, JOHN
O'TOOLE, defendants: Vincent M Garvey, Elizabeth Goitein, Esq, US Department of
Justice, Washington, DC.
SANTO DAIME CHURCH, aka Church of the Holy Light of the Queen, amicus: Thomas
E. Luebben, Jr., Esq., Albuquerque, NM.
SANTO DAIME CHURCH [**2] aka Church of the Holy Light of the Queen,
amicus: Roy S. Haber, Esq., Roy S. Haber, PC, Eugene, OR.
NATIVE AMERICAN CHURCH OF OKLAHOMA, NATIVE AMERICAN CHURCH OF NORTH AMERICA,
NATIVE AMERICAN CHURCH OF THE KIOWA TRIBE OF THE STATE OF OKLAHOMA, amicus:
David T Gomez, Esq, Roth, Van Amberg, Rogers, Ortiz, Fairbanks & Yepa, LLP,
C. Bryant Rogers, Esq., Santa Fe, NM.
JUDGES: James A. Parker, CHIEF UNITED STATES DISTRICT JUDGE.
OPINIONBY: James A. Parker
OPINION: [*1238] MEMORANDUM OPINION AND ORDER
The Plaintiffs' Motion for Preliminary Injunction (Doc. No. 10), filed December
22, 2000, raised the following issues: n1
[*1239]
1. Whether the federal government infringed Plaintiffs' rights under the Equal
Protection Clause of the Fourteenth Amendment to the United States
Constitution, made applicable to federal statutes by the Due Process Clause of
the Fifth Amendment, by selectively enforcing the Controlled Substances Act
(CSA) against Plaintiffs. In a Memorandum Opinion and Order filed February 25,
2002, this Court ruled that the Defendants did not violate Plaintiffs' rights
under the Equal Protection Clause.
2. Whether, as Plaintiffs contend, several canons of statutory construction
instruct [**3] that the CSA's treatment of dimethyltryptamine (DMT)
as a controlled substance does not extend also to include hoasca as a
controlled substance. The Court rejects this argument and holds that the plain
language of CSA chosen by Congress clearly covers hoasca as a controlled
substance.
3. Whether by interpreting CSA to prohibit the Plaintiffs' use of hoasca, the
Defendants have violated Plaintiffs' rights under the Free Exercise Clause of
the First Amendment to the United States Constitution by restricting
Plaintiffs' religious practices, which focus on the use of hoasca. The Court
concludes that the Defendants have not infringed Plaintiffs' rights under the
First Amendment because Congress drafted and promulgated CSA as a neutral law
of general applicability and the burden it puts on Plaintiffs' practices does
not violate the First Amendment.
4. Whether doctrines of international law direct that Defendants, as
representatives of the United States government, should permit the Plaintiffs'
ceremonial use of hoasca. The Court rules that international law principles do
not override Congress' clear application of the CSA to any use of hoasca in the
United States.
5. Whether [**4] the Defendants have met the heavy burden, imposed
by Congress on the government through passage of the Religious Freedom
Restoration Act (RFRA), to prove that the CSA's restriction on Plaintiffs'
religious practices regarding use of hoasca furthers a compelling governmental
interest through the least restrictive means. The Court begins with the
observation that Defendants, at this stage of this action, [*1240]
have explicitly conceded that Plaintiffs have established a prima facie case
under RFRA, and the Court concludes that, on the basis of the evidence presented
thus far, the government has failed to meet its high burden of proof, entitling
Plaintiffs to a preliminary injunction based on RFRA.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 This Court recognizes that in addition to the claims discussed in this
Memorandum Opinion and Order, the Plaintiffs' Complaint and Motion for
Preliminary Injunction included a claim under the Administrative Procedure Act
(APA), 5 U.S.C. § 701-706. The APA grants courts the authority to "hold
unlawful and set aside agency action, findings, and conclusions found to be ...
arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law; ... contrary to constitutional right, ... [or] in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right." 5
U.S.C. § 706(2). As the Government observes, the Plaintiffs' APA claim is
derivative- it hinges on the success of the Plaintiffs' analyses of their other
claims. The main significance of the APA claim at this stage of litigation
seems to relate to the type of relief that the Plaintiffs seek. The Plaintiffs
maintained in their brief in support of their Motion for Preliminary Injunction
that the APA empowers this Court to set aside the Government's decision that
the Plaintiffs are subject to prosecution for possessing hoasca and to order
the Government to return the seized hoasca to the UDV.
The Plaintiffs' Complaint and Motion for Preliminary Injunction also raised
claims under the Fourth and Fifth Amendments to the United States Constitution.
Under the Fourth Amendment, the Plaintiffs argue that the Government lacked a
legal basis to seize the hoasca belonging to the Plaintiffs, and under the
Fifth Amendment, the Plaintiffs argue that they were deprived of their hoasca without
due process of law. The Plaintiffs rely on their Fourth and Fifth Amendment
theories to maintain that they are entitled to the return of the hoasca. The
Court believes that, like the APA claim, these claims are derivative of the
claims asserted by the Plaintiffs that are discussed at great length in this
Memorandum Opinion and Order.
Because the Plaintiffs' APA, Fourth Amendment, and Fifth Amendment claims
primarily concern questions about the type of relief the Plaintiffs seek, the
Court will defer ruling on these claims at this time.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
[**5]
I. BACKGROUND
This case centers on a tea, called hoasca, brewed from two plants native to the
Amazon River Basin in South America. The consumption of hoasca plays a central
role in the religious ceremonies of the O Centro Espirita Beneficiente Uniao do
Vegetal (UDV). n2 Founded in Brazil in 1961, the UDV church blends Christian
theology with traditional indigenous religious beliefs. Church doctrine
instructs that hoasca is a sacrament, and UDV members ingest the tea during
church services. About 8,000 people belong to the UDV in Brazil. In 1993, the
UDV officially established a branch of the church in the United States. The
United States branch of the UDV, headquartered in Santa Fe, New Mexico, has
about 130 members.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 The term "hoasca" refers to the specific tea preparation used in
the UDV. "Ayahuasca" is a broader term that refers to a category of
South American teas containing DMT and beta-carbolines. Some witnesses quoted
in this Memorandum Opinion and Order use the terms "hoasca" and
"ayahuasca" interchangeably.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [**6]
The plants used to make hoasca do not grow in this country, and prior to 1999,
UDV leaders in the United States imported the tea from Brazil for use in church
ceremonies. On May 21, 1999, the United States Customs Service seized a
substantial quantity of hoasca from the UDV in the United States. The federal
government takes the position that the Controlled Substances Act (CSA), 21
U.S.C. § 801, et seq., prohibits the possession and use of hoasca. One
of the plant components of the tea contains dimethyltryptamine (DMT), a
hallucinogenic chemical. Under the CSA, DMT is a "Schedule I"
controlled substance and hence subject to strict controls. Although the United
States has not filed any criminal charges stemming from UDV officials' possession
of hoasca, the government has threatened prosecution for future possession of
the tea. In light of the government's interpretation of the CSA's application
to hoasca, the UDV has ceased using the tea in the United States.
The Plaintiffs in the present action are the United States branch of the UDV,
as well as several church leaders and members in the United States. On November
21, 2000, the Plaintiffs filed a Complaint [**7] for Declaratory and
Injunctive Relief (Doc. No. 1), alleging violations of the Religious Freedom
Restoration Act, the First Amendment to the United States Constitution, Equal
Protection principles, the Fourth Amendment, the Fifth Amendment, the
Administrative Procedure Act, and international laws and treaties. In addition,
the Complaint asserts that the CSA does not apply to hoasca. On December 22,
2000, the Plaintiffs filed a Motion for Preliminary Injunction (Doc. No. 10).
This Court held a hearing on the Plaintiffs' motion October 22 through November
2, 2001, during which the parties presented evidence and arguments on a number
of issues.
As previously noted, on February 25, 2002, the Court entered a Memorandum
Opinion and Order denying the Plaintiffs' Motion for Preliminary Injunction as
to their Equal Protection claim. This Memorandum Opinion and Order addresses
the other grounds on which the Plaintiffs base their Motion for Preliminary
Injunction.
[*1241] II. STANDARD OF REVIEW
Under Tenth Circuit law, "[a] movant is entitled to a preliminary
injunction if he can establish the following: (1) a substantial likelihood of
success on the merits of the case; (2) irreparable injury [**8] to
the movant if the preliminary injunction is denied; (3) the threatened injury
to the movant outweighs the injury to the other party under the preliminary
injunction; and (4) the injunction is not adverse to the public interest."
Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). This Memorandum
Opinion and Order focuses on the Plaintiffs' likelihood of success on the
merits of their First Amendment, RFRA, statutory construction, and
international law claims.
This Court recognizes that "if the party seeking the preliminary
injunction can establish the last three factors ... then the first factor
becomes less strict--i.e., instead of showing a substantial likelihood of
success, the party need only prove that there are 'questions going to the
merits ... so serious, substantial, difficult, and doubtful as to make the
issue ripe for litigation and deserving of more deliberate
investigation.'" Prairie Band of Potawatomi Indians v. Pierce, 253
F.3d 1234, 1246-1247 (10th Cir. 2001), quoting Federal Lands Legal
Consortium v. United States, 195 F.3d 1190, 1194 (10th Cir. 1999). However,
given the breadth of the parties' briefing in [**9] this case, and the
extensiveness of the arguments and evidence presented at the hearing, it seems
appropriate to consider the substance of the Plaintiffs' claims at this time.
The Court's decisions in this Memorandum Opinion and Order will not foreclose
the parties from presenting additional evidence at a trial on the merits. For
example, this Court understands that the Government may wish to contest at a
later time whether the Plaintiffs have established a prima facie case under
RFRA, and that the Plaintiffs may wish to develop a selective prosecution
argument.
III. DISCUSSION
A. FIRST AMENDMENT CLAIM
The First Amendment to the United States Constitution states that
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof ...." The Supreme Court has observed
that "in addressing the constitutional protection for free exercise of
religion, [its] cases establish the general proposition that a law that is
neutral and of general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect of burdening a
particular religious practice." Church of the Lukumi Babalu Aye, Inc.
v. City of Hialeah, 508 U.S. 520, 531, 124 L. Ed. 2d 472, 113 S. Ct. 2217
(1993), [**10] citing Employment Division, Department of Human
Resources of Oregon v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct.
1595 (1990). In contrast, a law that is not neutral and is not generally
applicable "must be justified by a compelling governmental interest and
must be narrowly tailored to advance that interest." Lukumi, 508
U.S. at 531-32.
While an evaluation of a free exercise claim typically begins by considering
whether the plaintiffs have shown that a governmental action substantially
burdens their religious practices, Hernandez v. Commissioner of Internal
Revenue, 490 U.S. 680, 699, 104 L. Ed. 2d 766, 109 S. Ct. 2136 (1989), the
Court need not address that preliminary issue in this case. The Government does
not contest, at this stage of litigation, that its interpretation of the CSA
which prohibits ceremonial hoasca use substantially burdens the Plaintiffs'
exercise of their religion. Therefore, this Court turns to the question of
whether the [*1242] CSA is a neutral law of general applicability.
The Plaintiffs argue that the CSA "cannot be characterized as a neutral
law of general applicability," because the statute "provides a wide
variety of exceptions, exemptions and licenses permitting the
use [**11] of controlled substances in non-religious settings."
Reply, at 31. As support for their argument that the CSA is neither neutral nor
generally applicable, the Plaintiffs point to the exemptions set forth in the
statute for certain uses of controlled substances. For example, 21 U.S.C. §
872(e) provides that the Attorney General "may authorize the possession,
distribution, and dispensing of controlled substances by persons engaged in
research." Elsewhere in the CSA, 21 U.S.C. §§ 822 and 823 outline
procedures for the Attorney General to use in registering entities that engage
in the manufacture and distribution of controlled substances for medical,
scientific, research, and industrial purposes.
As the Government observes, the Plaintiffs' analysis seems to deviate from
Supreme Court and Tenth Circuit precedent regarding whether controlled
substances laws are neutral and generally applicable. In Smith, the
Supreme Court considered an Oregon drug statute which prohibited the possession
of peyote, among other substances, and which contained no exception for the
religious use of controlled substances. The plaintiffs in Smith had been
fired [**12] from their jobs for consuming peyote in a ceremonial
setting, and the state denied their applications for employment benefits on the
basis that the plaintiffs' dismissal stemmed from their use of a controlled
substance. The plaintiffs maintained that Oregon had violated their free
exercise rights by enforcing the statutory prohibition against peyote to
restrict the plaintiffs' religious use of the substance.
Rejecting the Smith plaintiffs' argument, the Supreme Court stated that
its "decisions have consistently held that the right of free exercise does
not relieve an individual of the obligation to comply with a 'valid and neutral
law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).'" Id. at
879, quoting United States v. Lee, 455 U.S. 252, 263, n.3, 71 L. Ed. 2d
127, 102 S. Ct. 1051 (1982) (Stevens, J., concurring in judgment). The Government
stresses that the Oregon law upheld in Smith provides exemptions for the
use of controlled substances similar to those outlined in the federal
Controlled Substances Act. O.R.S. § 475.125. Thus, according to the Government,
"Smith itself effectively answers Plaintiffs' [**13]
claim that the medical, scientific, industrial, and research exemptions
contained in the Controlled Substances Act render the Act non-neutral and not
generally applicable." Response, at 39.
The Tenth Circuit relied on Smith in order to reach its decision in United
States v. Meyers, 95 F.3d 1475 (1996). In Meyers, a criminal
defendant charged with marijuana offenses under the federal Controlled
Substances Act alleged that his adherence to the "Church of
Marijuana" required him to distribute the drug. The Tenth Circuit declined
to accept Mr. Meyers's argument that the CSA's prohibition of marijuana
distribution violated his First Amendment rights. The court held that
"Meyers' challenge fails for the same reasons as the respondents challenge
in Smith failed, i.e., the right to free exercise of religion under the
Free Exercise Clause of the First Amendment does not relieve an individual of
the obligation to comply with a valid and neutral law of general applicability
on the ground that the law incidentally affects religious practice." Id.
at 1481. The comments of the Meyers [*1243] court reflect an
assumption that the CSA is a neutral, generally applicable [**14]
law within the meaning of Smith. The court stated, for example, that
"when, as here, the challenge is to a valid neutral law of general
applicability, the law need not be justified by a compelling governmental
interest." Id., citing Lukumi Babalu Aye, 508 U.S. at 521 (emphasis
added).
Given the opinions in Smith and Meyers, this Court believes that
it has little leeway to accept the Plaintiffs' argument that the CSA is not a
neutral, generally applicable law. However, the Plaintiffs contend that this
case is distinguishable from Smith and Meyers. The Plaintiffs
maintain that Smith and Meyers are distinct from the present case
in that the courts in Smith and Meyers were not considering the
issue of whether exemptions for scientific research and other uses would render
a drug law non-neutral or not generally applicable. In Smith and Meyers,
the parties raising First Amendment challenges to controlled substance laws
were not contesting the neutrality or general applicability of those laws.
Instead, they were claiming that otherwise-valid laws that incidentally burden
the practice of a person's religion could violate that [**15]
individual's free exercise rights. See Smith, 494 U.S. at 878 (Observing
that the plaintiffs "contend that their religious motivation for using
peyote places them beyond the reach of a criminal law that is not specifically
directed at their religious practice, and that is concededly constitutional as
applied to those who use the drug for other reasons"); Meyers, 95
F.3d at 1481 (Taking note of criminal defendant's suggestion that even a
neutral, generally applicable law must be justified by a compelling government
interest if it imposes a burden on religious conduct.)
This Court will therefore consider whether the CSA is a neutral, generally
applicable law in light of the exceptions that it provides for research and
other uses. The United States Supreme Court examined the concepts of neutrality
and general applicability in Lukumi, 508 U.S. 520, 124 L. Ed. 2d 472,
113 S. Ct. 2217. In Lukumi, a church affiliated with the Santeria
religion challenged several ordinances that had been enacted by the Hialeah,
Florida city council. Animal sacrifice plays a significant role in the practice
of Santeria. When the plaintiff church announced plans to open a house of
worship [**16] in Hialeah, the city council passed ordinances
banning the ritual killing of animals but permitting the killing of animals in
many other contexts.
The Supreme Court concluded that Hialeah's regulatory scheme was neither
neutral nor generally applicable. The ordinances failed the neutrality test because,
taken together, they amounted to a "religious gerrymander." Id. at
535, quoting Walz v. Tax Comm'n of New York City, 397 U.S. 664, 696, 25
L. Ed. 2d 697, 90 S. Ct. 1409 (1970) (Harlan, J., concurring). The city council
had essentially prohibited the killing of animals for religious reasons while
exempting from prohibition almost all non-religious killing. The Hialeah
ordinances were not generally applicable, because they were underinclusive with
regard to the laws' purported goals, ultimately "pursuing the city's
governmental interests only against conduct motivated by religious
belief." In reaching its decision, the Lukumi court provided
helpful guidelines for analyzing the concepts of neutrality and general
applicability. This Court will draw on these guidelines in assessing the
Plaintiffs' position.
1. NEUTRALITY
Under Lukumi, in order to establish that a law is not neutral,
[**17] a plaintiff must show "that the object or purpose of
[the] [*1244] law is the suppression of religion or religious
conduct." Id. at 533. The Lukumi court explained that "the
minimum requirement of neutrality is that a law not discriminate on its
face," but that "facial neutrality is not determinative." Id. at
533-34. Because "the Free Exercise Clause protects against governmental
hostility which is masked, as well as overt," courts should look beyond
the surface for indications that the purpose of a law is to suppress religion.
Id. at 534. The court observed that "the effect of a law in its real
operation is strong evidence of its object." Id. at 535.
The Plaintiffs in the present case do not appear to contend that, on its face,
the CSA targets the religious use of drugs. Rather, the Plaintiffs seem to
argue that a comparison between the statute's treatment of secular uses, as
opposed to its treatment of religious uses, supports the inference that the
CSA's purpose is to limit the religious use of controlled substances. The
Plaintiffs maintain that "the CSA is not neutral as between secular and
religious interests," because the law exempts the secular use of
controlled substances in [**18] medical, scientific, industrial, and
research settings, but bans almost all religious uses of controlled substances.
n3
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 The Plaintiffs also argue that the CSA is not neutral between religions,
because the law provides an exemption for the Native American Church's
ceremonial use of peyote. The Court has already addressed this issue at length,
in the context of the Plaintiffs' claims under the Equal Protection clause and
the Establishment Clause. In its Memorandum Opinion and Order entered February
25, 2002, the Court found that the federal government's peyote exemption policy
does not constitute impermissible favoritism toward the Native American Church.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
The Plaintiffs' failure to take into account the full spectrum of potential
uses for drugs undercuts their argument, however. For example, the Plaintiffs
ignore a very important category of secular drug use- recreational drug use.
This Court imagines that there are a number of individuals in the United States
who may wish to use a given controlled substance [**19] in a setting
that is neither scientific nor ceremonial in a religious context. The CSA
restricts the freedom of recreational users, as well religious users, to
consume controlled substances. This Court cannot reasonably infer from the way
that the CSA operates that the purpose of the law is to target religious
ceremonial drug use. This case therefore presents much different circumstances
from Lukumi, where the Supreme Court found, upon examining the operation
of the challenged city ordinances, that "it is a necessary conclusion that
almost the only conduct subject to [the ordinances] is the religious exercise
of Santeria church members." Id. at 535.
2. GENERAL APPLICABILITY
Discussing the requirement of general applicability, the Lukumi court
observed that "all laws are selective to some extent, but categories of
selection are of paramount concern when a law has the incidental effect of
burdening religious practice." Id. at 542. The "government ... cannot
in a selective manner impose burdens only on conduct motivated by religious
belief." Id. at 543. The ordinances at issue in Lukumi were so
deficient that the court declined to "define with precision the standard
used [**20] to evaluate whether a prohibition is of general
application." Id. However, the Lukumi court made clear that a law is
not generally applicable if it was purportedly adopted to protect certain
interests, yet "fails to prohibit nonreligious conduct that endangers
these interests [*1245] in a similar or greater degree than [the
banned religious conduct] does." Id.
In Lukumi, for example, the city of Hialeah claimed that one of the
goals of the contested ordinances was to prevent cruelty to animals. The
Supreme Court noted, though, that "many types of animal deaths or kills
for nonreligious reasons are either not prohibited or approved by express
provision." Id. at 543. Hunting, fishing, rodent extermination, and the
euthanasia of stray animals all continued to be legal. The Lukumi court
concluded that "despite the city's proffered interest in preventing
cruelty to animals, the ordinances are drafted with care to forbid few killings
but those occasioned by religious sacrifice." Id. The Court found that the
ordinances were similarly underinclusive with respect to the city's claimed
goal of protecting public health.
The Third Circuit examined the general applicability
requirement [**21] in an opinion cited by both the Plaintiffs and
the Government. In Fraternal Order of Police v. City of Newark, 170 F.3d
359 (1999), a Newark Police Department policy required police officers to shave
their beards. The police department allowed exceptions to the shaving policy
for officers who had medical reasons for not shaving and for undercover
officers. Two police officers challenged the departmental policy on the ground
that they are Sunni Muslims and their religion prohibits them from shaving.
The Third Circuit found that while the exemption for undercover officers did
not diminish the general applicability of the beard policy, the medical
exemption did. The Department had adopted the policy to promote a uniform
appearance among its officers. The Third Circuit pointed out that "the
undercover exception ... does not undermine the Department's interest in
uniformity because undercover officers 'obviously are not held out to the public
as law enforcement personnel.'" Id. at 366 (citing reply brief.) In
contrast, "the medical exemption raises concern because it indicates that
the Department has made a value judgment that secular (i.e., medical)
motivations [**22] for wearing a beard are important enough to
overcome its general interest in uniformity but that religious motivations are
not." Id. at 366.
Like the Third Circuit, the District of Nebraska found that a governmental
policy failed to meet the general applicability standard elucidated in Lukumi.
Rader v. Johnston, 924 F. Supp. 1540 (D. Neb. 1996) concerned a University
of Nebraska-Kearney rule requiring freshmen to live in dormitories on campus.
University officials represented that the goals of the policy were to promote
diversity and tolerance, encourage academic achievement, and, for financial
reasons, to make sure that there were enough students living on campus to fill
the dorms. The plaintiff, a devout Christian, requested an exemption from the
on-campus housing policy, so that he could live instead in an off-campus
Christian housing facility. The plaintiff maintained that the lifestyle in the
dorms, where many students drank alcohol and had parties, would interfere with
the practice of his religion. When the university denied the plaintiff's
application for an exemption, he brought a claim under the Free Exercise
clause.
In reaching its decision, [**23] the District of Nebraska took note
of the many categories of freshmen exempt from the housing rule. The policy
enumerated exceptions for married students, students with parents living
nearby, part-time students, and students who were older than nineteen at the
start of the school year. In addition, university officials granted a
significant number of exceptions to students applying for waivers based on a
variety of special circumstances. Evidence showed that in practice,
[*1246] the university applied the housing rule to only 1,600 of
2,500 freshmen. The District of Nebraska cited the fact that "over one
third of the freshman students ... are not required to comply with the parietal
rule" in determining that "the parietal rule cannot be viewed as
generally applicable to all freshman students." Id. at 1553. The court
stressed that "although exceptions are granted by the defendants for a
variety of non-religious reasons, they are not granted for religious
reasons." Id. at 1553.
In this case, the Court will follow the approach outlined in Lukumi. In
order to evaluate the general applicability of the CSA, this Court will inquire
into whether the statute is substantially [**24] underinclusive as
to its purported aims- whether the CSA "fails[s] to prohibit nonreligious
conduct that endangers" governmental interests "in a similar or
greater degree than" the religious ceremonial consumption of controlled
substances does. In their memorandum in support of the motion for preliminary
injunction, the Plaintiffs emphasize that through the CSA's registration scheme
for drugs used in medical, scientific, industrial, and research settings, huge
amounts of controlled substances are produced and distributed. However, this
Court believes, as does the Government, that the Lukumi framework
requires the Plaintiffs to demonstrate more than that the CSA includes
significant exceptions for certain secular uses of controlled substances.
Rather, the Plaintiffs must show that the research and scientific exceptions to
the CSA jeopardize the same interests that the government uses to justify the
restrictions on religious conduct imposed by the CSA.
The Court concludes in this case that the secular exceptions specified in the
CSA do not implicate the purpose of the law. The Government has suggested that
in enacting the CSA, "Congress's primary target was a secular one:
the [**25] recreational use of controlled substances." Reply at
37, citing H.R. Rep. No. 91-1444, 91st Cong., 2d Sess., reprinted in 1970
U.S.C.C.A.N. 4566. This Court agrees that the CSA reflects Congressional
concern about the risks to public health and safety associated using controlled
substances. Included among the findings at the beginning of the CSA is the
statement that "the illegal importation, manufacture, distribution, and
possession and improper use of controlled substances have a substantial and
detrimental effect on the health and general welfare of the American
people." 21 U.S.C. § 801(2).
As the Third Circuit explained in the City of Newark case, "the
Free Exercise Clause does not require the government to apply its laws to
activities that it does not have an interest in preventing." 170 F.2d at
366. Here, allowing certain uses of drugs in controlled scientific, research,
and medical environments does not run counter to the government's interest in
promoting public health. The unregulated consumption of drugs in ceremonial
settings may present risks of adverse health effects and illegal diversion in a
way that the research exceptions do [**26] not. See, e.g., Hrg. Tr.
at 864, Testimony of Sander Genser (Discussing why controlled research settings
ensure relative safety.) This Court concludes that the CSA meets the standard
for general applicability, because the law generally applies to the uses of
controlled substances that endanger public health.
While the Plaintiffs' initial argument in favor of their free exercise claim
focused on the research exemptions set forth in the CSA, the Plaintiffs' reply
brief and trial brief present a different contention- that although some plants
growing within the United States contain DMT, "the government has singled
out hoasca for suppression [*1247] and has singled out the
adherents of the UDV for threat of criminal prosecution." Reply, at 34.
According to the Plaintiffs, "the Department of Justice, DEA and Customs
have made the administrative decision to remain aloof from any thorny decision
regarding the possession and abuse of DMT-containing plants that grow in this
country and has chosen, instead, to limit its enforcement efforts to religious
use of DMT-containing plants." Supplemental Trial Memorandum, at 5. The
Plaintiffs seems to draw on an Equal Protection theory, arguing that even
if [**27] the CSA is impartial, the Government is applying it in a
way that discriminates against the Plaintiffs on the basis of religion. (See,
e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312, 49
L. Ed. 2d 520, 96 S. Ct. 2562 (1976), stating that "equal protection
analysis requires strict scrutiny of a legislative classification ... when the
classification impermissibly interferes with the exercise of a fundamental
right or operates to the peculiar disadvantage of a suspect class.")
During the hearing, the Plaintiffs presented evidence showing that certain
plants growing in this country, including phalaris grass, contain DMT. The
Plaintiffs' evidence included a document showing that the United States
Department of Agriculture even recommends using one kind of phalaris for
erosion control. The Plaintiffs appear to argue that if people are allowed to
grow phalaris grass for nonreligious reasons, while the UDV's supply of hoasca
is confiscated, this Court should conclude that the federal government must be
discriminating against the Plaintiffs on the basis of religion. The Court does
not believe that the evidence about phalaris would necessarily lead to that
conclusion. Individuals with phalaris [**28] grass in their lawns
may possess DMT in some sense. However, if there are no indications that the
people with phalaris lawns are consuming the grass, law enforcement
might legitimately choose not to prosecute, for reasons other than that the
grass is being used for the secular purpose of having a lawn. Federal law
enforcement entities might prioritize focusing on the UDV's hoasca use not
because the use is religious, but instead because UDV members make much more
extensive use of hoasca by personally ingesting it than a person with a
phalaris lawn makes of the grass. Before their tea was confiscated, UDV
officials regularly distributed the tea to church members for consumption.
Some evidence presented at the hearing suggested that non-religious consumption
of plants containing DMT does take place in the United States. This evidence
included materials taken from the internet- advertisements for plants
containing DMT and testimonials from people claiming to have used teas similar
to hoasca. While such evidence might eventually contribute to support an
argument that the UDV was selectively prosecuted on the basis of religion, this
evidence, standing alone, is insufficient to create [**29] an
inference that selective prosecution in fact occurred. As the Government
observes, the use of DMT reported on the internet differs in scale from the
UDV's use, and the authorities may have chosen to target the UDV for reasons
other than religion. The Government notes that "the possibility that an
internet account of a single dose may be accurate and could be reliably traced
to the perpetrator cannot compare to the actual interception of 3,000 doses of
an illegal substance being imported for distribution." Trial Memorandum,
at 13.
In its February 25, 2002 Memorandum Opinion and Order addressing the
Plaintiffs' Equal Protection claim, the Court noted that Plaintiffs' counsel
have represented that following discovery, the Plaintiffs may pursue a claim
that the government has impermissibly targeted the UDV [*1248] in
particular for prosecution. By finding that the Plaintiffs' evidence is not
sufficient at this time to support a preliminary injunction based on a
selective prosecution theory, the Court does not intend to foreclose further
efforts by the Plaintiffs to develop that theory.
B. PLAINTIFFS' ARGUMENT THAT THE CSA DOES NOT EXTEND TO HOASCA
This Court has thus far assumed, in considering [**30] the
Plaintiffs' claims under the United States Constitution, that the CSA's ban on
DMT applies to hoasca. The Plaintiffs argue, however, that "even if the
Defendants were not violating Plaintiffs' rights under RFRA and the Free
Exercise and the Equal Protection clauses, their actions are nonetheless
illegal because hoasca is not a controlled substance" under the CSA. The
Plaintiffs acknowledge that "one of the plants that comprise Hoasca, psychotria
viridis, is naturally composed, in very small part, of DMT." The
Plaintiffs also recognize that DMT is scheduled as a controlled substance under
the CSA. They maintain, though, that the CSA prohibits only synthetic DMT, and
not the DMT occurring naturally in plants. The Plaintiffs premise this argument
on the proposition that the language of the CSA is ambiguous as applied to DMT
in a natural state.
As the United States Supreme Court has made clear, "the starting point for
... interpretation of a statute is always its language." Community for
Creative Non-Violence v. Reid, 490 U.S. 730, 739, 104 L. Ed. 2d 811, 109 S.
Ct. 2166 (1989). Thus this Court must first look to the language of the CSA in
order to evaluate the Plaintiffs' arguments. The CSA divides [**31]
controlled substances into five schedules, classified according to
Congressional determinations regarding each drug's potential for abuse and each
drug's accepted medical uses. n4 The CSA places a number of hallucinogenic
drugs into Schedule I, the most strictly regulated category. Schedule I(c)
provides that "unless specifically excepted or unless listed in another
schedule, any material, compound, mixture, or preparation, which contains any
quantity of the following hallucinogenic substances" falls within the
Schedule I category. Among the hallucinogens listed in Schedule I(c) is
dimethyltryptamine (DMT).
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 A drug's placement in Schedule I indicates that the substance "has a
high potential for abuse," that it "has no currently accepted medical
use in treatment in the United States," and that "there is a lack of
accepted safety for use of the drug ... under medical supervision." 21
U.S.C. § 812(b)(1).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
This Court agrees with the Government that the language of the CSA clearly
covers hoasca. [**32] After all, the Plaintiffs do not dispute that
one of the plant components of hoasca contains DMT. The Court is constrained to
conclude that hoasca tea thus constitutes a "material, compound, mixture,
or preparation which contains any quantity" of DMT, within the plain
meaning of the statute.
However, the Plaintiffs offer a number of theories of statutory construction to
support their argument that the CSA should not be interpreted to apply to
plants that contain DMT and to substances derived from those plants. For
example, the Plaintiffs stress that Congress is presumed to avoid superfluous
drafting. See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 574, 131 L.
Ed. 2d 1, 115 S. Ct. 1061 (1995). The Plaintiffs observe that the CSA contains
a number of instances where Congress expressly banned both a given chemical and
the plant in which that chemical is naturally found. Based on this, the
Plaintiffs declare that because Congress listed only a chemical substance, DMT,
it did not [*1249] intend that plants containing that substance
would also be prohibited. Otherwise, Congress would have engaged in superfluous
drafting elsewhere in the CSA by, for example, explicitly scheduling both
peyote (a plant) and mescaline [**33] (a chemical substance.)
The Plaintiffs have also drawn on the following principles to argue that the
CSA should not be interpreted to ban hoasca: 1) the canon that courts should
not construe statutory provisions to contradict other parts of a statutory
scheme, see e.g., United Sav. Ass'n v. Timbers of Inwood Forest Assocs.,
484 U.S. 365, 371, 98 L. Ed. 2d 740, 108 S. Ct. 626 (1988); 2) the principle of
"Expressio unius est exclusio alterius", see e.g., Leatherman
v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 168, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); 3) the rule of lenity, see
e.g. United States v. Universal C.I.T. Credit Corp., 344 U.S. 218,
221-22, 97 L. Ed. 260, 73 S. Ct. 227 (1952); and 4) the principle that courts
should construe statutes to avoid constitutional problems, see e.g., NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490, 500, 59 L. Ed. 2d 533, 99 S. Ct.
1313 (1979).
The Plaintiffs have presented interesting arguments under all of these
theories, and their arguments may well have been persuasive if the statute at
issue were any less clear. As the Government points out, however, most of the
principles discussed by the Plaintiffs become relevant only if the statutory
language is ambiguous. The [**34] Supreme Court has noted that:
In any
event, canons of construction are no more than rules of thumb that help courts
determine the meaning of legislation, and in interpreting a statute a court
should always turn first to one, cardinal canon before all others. We have
stated time and again that courts must presume that a legislature says in a statute
what it means and means in a statute what it says there. See, e.g., United
States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241-242, 109 S. Ct.
1026, 1030-1031, 103 L. Ed. 2d 290 (1989); United States v. Goldenberg,
168 U.S. 95, 102-103, 18 S. Ct. 3, 4, 42 L. Ed. 394 (1897); Oneale v.
Thornton, 10 U.S. 53, 6 Cranch 53, 68, 3 L. Ed. 150 (1810). When the words
of a statute are unambiguous, then, this first canon is also the last:
"judicial inquiry is complete." Rubin v. United States, 449
U.S. 424, 430, 101 S. Ct. 698, 701, 66 L. Ed. 2d 633 (1981); see also Ron
Pair Enterprises, supra, 489 U.S., at 241, 109 S. Ct., at 1030.
Connecticut Nat'l Bank v. Germain, 503 U.S. 249, 253-54, 117 L. Ed. 2d
391, 112 S. Ct. 1146 (1992). More recently, the Supreme Court has
explained [**35] that a court's "first step 'is to determine
whether the language at issue has a plain and unambiguous meaning with regard
to the particular dispute in the case,'" and that "the inquiry ceases
'if the statutory language is unambiguous and the statutory scheme is coherent
and consistent."' Barnhart v. Sigmon Coal Company, Inc., 534 U.S.
438, 151 L. Ed. 2d 908, 122 S. Ct. 941 (2002), quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 340, 136 L. Ed. 2d 808, 117 S. Ct. 843 (1997).
Granted, a court should not read a statute literally if a literal construction
would "lead to irreconcilable inconsistencies or clearly absurd results
that Congress could not have intended." Resolution Trust Corp. v.
Westgate Partners, Ltd., 937 F.2d 526, 531 (10th Cir. 1991). However, this
Court does not believe that interpreting the CSA to prohibit hoasca use results
in absurdity or creates an internally-contradictory statute. The Plaintiffs
observe that many plants and animals, including humans, contain DMT; and the
Plaintiffs imply that because the CSA cannot be read to ban humans, that the
statute must apply only to synthetic DMT. Simply because [*1250]
banning humans would be absurd does not mean that banning any non-synthetic
DMT [**36] found elsewhere would be absurd. Courts confronted with
potentially absurd statutory applications are to consider "alternative
interpretations consistent with the legislative purpose." Oxy USA, Inc.
v. Babbitt, 268 F.3d 1001, 1012 (10th Cir. 2001), quoting Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 575, 73 L. Ed. 2d 973, 102 S. Ct.
3245 (1982). In this case, interpreting the CSA to apply to the ingestion of a
tea containing a hallucinogenic chemical seems reasonable, even if interpreting
the CSA to apply to the human body does not.
In addition, the Plaintiffs have failed to establish that interpreting the CSA
to apply to hoasca would contradict other provisions of the statute. The
Plaintiffs have not pointed to any contradictions that directly concern the
CSA's treatment of DMT and substances containing DMT. It is not as if the
statute places DMT in one schedule and products made with DMT in another
schedule, for example. Rather, the Plaintiffs' arguments rely on an analysis of
the CSA's approach to other drugs.
The Plaintiffs argue that construing the CSA's prohibition on DMT to apply to
hoasca creates a contradiction in the federal peyote exemption scheme. The CSA
schedules [**37] both peyote, a cactus button, and mescaline, the
hallucinogenic chemical found in peyote, but the federal regulatory exemption
refers only to peyote, and not to mescaline. The Plaintiffs maintain that
"if the listing of a substance encompasses all plants that contain the
substance, then the exemption for peyote alone is meaningless: the [Native
American Church] would violate the CSA at each of its ceremonies by using a
plant that contains 'mescaline.'" Memorandum in Support of Motion for
Preliminary Injunction, at 33. The Government has effectively countered the
Plaintiffs' argument by pointing out that a member of the Native American
Church would not violate the CSA by using peyote, even if peyote contains
mescaline, because the federal regulatory exemption explicitly permits church
members to use peyote.
Because the plain language of the CSA clearly indicates that the statute's
prohibition on DMT extends to hoasca, and because the application of the
statute does not result in absurdity or in internal contradictions, this Court
concludes that hoasca is an illegal substance under the CSA.
C. PLAINTIFFS' CLAIMS UNDER INTERNATIONAL LAW OF COMITY
This Court's conclusion that the [**38] language of the CSA is
unambiguous, with respect to the statute's application to the use of hoasca by
the UDV, resolves another of the Plaintiffs' claims. The Plaintiffs contend
that the international law doctrine of comity suggests that the government
should not interfere with the UDV's religious consumption of hoasca. Comity is
"the recognition which one nation allows within its territory to the legislative,
executive, or judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its own citizens, or
of other persons who are under the protection of its laws." In the
Matter of The Colorado Corp. v. Lam, 531 F.2d 463, 468 (10th Cir. 1976),
quoting Hilton v. Guyot, 159 U.S. 113, 40 L. Ed. 95, 16 S. Ct. 139
(1895). The United States Supreme Court has observed that "comity refers
to the spirit of cooperation in which a domestic tribunal approaches the resolution
of cases touching the laws and interests of other sovereign states." Societe
Nationale Industrielle Aerospatiale v. United States District Court for the
Southern District of Iowa, 482 U.S. 522, 543 n. 27, 96 L. Ed. 2d 461, 107
S. Ct. 2542 (1987).
The Plaintiffs stress that courts have [**39] recognized a
"canon of statutory construction that requires courts, whenever possible,
[*1251] to construe federal statutes to ensure their application
will not violate international law." Commodity Futures Trading
Commission v. Nahas, 238 U.S. App. D.C. 93, 738 F.2d 487, 493 (D.C. Cir.
1984), citing Murray v. The Schooner Betsy, 6 U.S. (2 Cranch) 64, 118, 2
L. Ed. 208 (1804) ("An act of congress ought never to be construed to
violate the law of nations, if any other possible construction remains.")
See also, e.g., Grunfeder v. Heckler, 748 F.2d 503, 509 (9th Cir. 1984)
("Absent an expression of congressional intent to the contrary,
considerations of courtesy and mutuality require our courts to construe
domestic legislation in a way that minimizes interference with the purpose or
effect of foreign law.")
The Plaintiffs argue that allowing the Government to prohibit the UDV's
ceremonial use of hoasca would conflict with Brazilian law and with a number of
international treaties. n5 As Dr. Brito testified during the evidentiary
hearing, Brazil permits members of the UDV to consume hoasca for religious
reasons. The Plaintiffs also emphasize that international
agreements [**40] to which the United States is a party, such as the
United Nations International Covenant on Civil and Political Rights, pledge
support for freedom of religious beliefs and practices. Moreover, Plaintiffs
direct attention to the International Religious Freedom Act, 22 U.S.C. §
6401-6481, enacted in 1998, which, Plaintiffs say, further reflects
Congressional commitment to the promotion of religious freedom throughout the
world. n6 According to the Plaintiffs, permitting the ceremonial use of hoasca
would "not only show comity to, and enhance our relations with, [Brazil],
but will also demonstrate our government's willingness to give appropriate
respect to a multi-cultural international community generally." Memorandum
in Support of Motion for Preliminary Injunction, at 44.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 The Plaintiffs do not appear to argue that any treaty explicitly or directly
requires that the United States refrain from prohibiting the religious use of
hoasca. Rather, the Plaintiffs seem to contend that the Government's
interpretation of the CSA to apply even to the sacramental consumption of
hoasca is inconsistent with general principles of international religious
freedom that are reflected in treaties to which the United States is a
signatory. Therefore, this Court has not conducted an inquiry into the issue of
whether, for example, a later-enacted treaty would trump the ban on DMT
contained in the CSA. [**41]
n6 However, as the Plaintiffs acknowledge, Congress passed this statute to
address threats to religious freedom occurring in countries other than the
United States.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Even assuming that principles of international law would favor construing an ambiguous
controlled substances statute to allow the religious use of hoasca, this Court
believes that the CSA does not leave room for the interpretation the Plaintiffs
request. As the United States Court of Appeals for the District of Columbia
Circuit eloquently stated in Nahas, "federal courts must give
effect to a valid, unambiguous congressional mandate, even if such effect would
conflict with another nation's laws or violate international law." 738
F.2d at 495. The sources cited by the Plaintiffs for the proposition that a
domestic law should not be interpreted to conflict with international law, such
as the Murray and Grunfelder cases, 6 U.S. 64, 2 L. Ed. 208 and
748 F.2d at 509, assume that the domestic law lends itself to more than one
interpretation. In this case, the Court has found that, under the
plain [**42] language of the CSA, the statute's ban on DMT clearly
extends to hoasca. Comity is not an "absolute obligation," Colorado
Corp., 531 F.2d at 468, quoting Hilton, 159 U.S. 113, and this Court
cannot rely on the comity principle [*1252] to disregard a clear
statement from Congress on a matter of domestic law.
D. RELIGIOUS FREEDOM RESTORATION ACT CLAIM
In Section III(A) above, this Court evaluated the Plaintiffs' Free Exercise
claim in light of the Supreme Court's holding in Smith that "the
right to free exercise of religion does not relieve an individual of the
obligation to comply with a valid and neutral law of general
applicability," even if that law incidentally burdens the practice of
religion. United States v. Meyers, 95 F.3d 1475, 1480 (10th Cir. 1996),
citing Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595. Because
this Court concluded that the CSA was neutral and generally applicable, the
Court found that the Plaintiffs were not entitled to a preliminary injunction
on their First Amendment claim.
However, the Plaintiffs also raise a religious freedom claim that has a
statutory, rather than Constitutional, basis. Following the Supreme Court's
decision in [**43] Smith, Congress enacted the Religious
Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb. In the "Congressional
findings and declaration of purposes" section of the statute, Congress
criticized the Supreme Court's holding in Smith and stated that RFRA was
intended "to restore the compelling interest test as set forth in Sherbert
v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965, 83 S. Ct. 1790 (1963) and Wisconsin
v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15, 92 S. Ct. 1526 (1972)." RFRA
provides that:
Government may substantially burden a person's exercise of religion only if it
demonstrates that application of the burden to the person-
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000bb-1(b). n7
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 In City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S.
Ct. 2157 (1997), the Supreme Court declared RFRA unconstitutional as applied to
state governments. However, the Tenth Circuit has held that "RFRA as
applied to the federal government is severable from the portion of RFRA
declared unconstitutional in Flores, and independently remains
applicable to federal officials." 242 F.3d 950, 960 (10th Cir. 2001).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [**44]
In order to state a prima facie claim under RFRA, a plaintiff must show
"(1) a substantial burden imposed by the federal government on a (2)
sincere (3) exercise of religion." Kikumura v. Hurley, 242 F.3d
950, 960 (10th Cir. 2001). If the plaintiff meets "the threshold
requirements by a preponderance of the evidence, the burden shifts to the
government to demonstrate that the challenged regulation furthers a compelling
state interest in the least restrictive manner." Meyers, 95 F.3d at
1482. In this case, the Government did not dispute, for purposes of the
Plaintiffs' motion for preliminary injunction, that the Plaintiffs had
established a prima facie case under RFRA. Stated differently, the government
conceded, at this point in the course of the case, that the CSA imposes a
substantial burden on Plaintiffs' sincere exercise of religion. Hence, the
hearing began with the Government shouldering the weighty load thrust upon it
by Congress in passing RFRA.
1. COMPELLING GOVERNMENTAL INTERESTS
The Government asserts that it "has at least three compelling interests in
prohibiting the importation and use of DMT-containing substances, all of
which [**45] are implicated by the UDV's religious use of ayahuasca."
Response, at 15. The Government has alleged a compelling interest in 1)
adhering to the 1971 Convention on [*1253] psychotropic substances;
2) preventing the health and safety risks posed by hoasca; and 3) preventing
the diversion of hoasca to non-religious use.
Before turning to a specific analysis of whether the Government has met its
burden of establishing a compelling interest, this Court notes that there are
two significant distinctions between the present case and many other cases in
which individuals have challenged drug laws on religious freedom grounds.
First, as observed above, the Government concedes for purposes of this motion
that the UDV is a religion, that the Plaintiffs sincerely believe in the tenets
of the UDV religion, and that the application of the CSA to the UDV's
ceremonial use of hoasca substantially burdens the Plaintiffs' practice of
their religion. In contrast, courts in other RFRA cases concerning drugs have
sometimes found that the plaintiff's religious beliefs do not constitute
religious beliefs, or that the plaintiff does not sincerely hold the beliefs,
or that the government's action does not actually [**46]
substantially burden the plaintiff's religious practice.
United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996) involved a
criminal defendant who moved under RFRA to dismiss the marijuana charges
brought against him. Mr. Meyers "testified that he is the founder and
Reverend of the Church of Marijuana and that it is his sincere belief that his
religion commands him to use, possess, grow and distribute marijuana for the
good of mankind and the planet earth." Id. at 1479. The Tenth Circuit
considered whether Mr. Meyers's convictions were "religious beliefs,"
or whether the convictions instead amounted to "a philosophy or way of
life." Id. at 1482. The Tenth Circuit adopted the district court's finding
that, in light of the secular nature of Mr. Meyers's views on the medical,
therapeutic, and social benefits of marijuana, "Meyers' beliefs more
accurately espouse a philosophy and/or way of life rather than a
'religion.'" Id. at 1484.
In United States v. Bauer, 84 F.3d 1549, a Ninth Circuit case, three
criminal defendants sought to rely on RFRA in defending against a number of
marijuana charges. The defendants were [**47] adherents to the
Rastafarian religion, in which marijuana is a sacrament. The Bauer court
emphasized that the availability of RFRA as a defense to the various marijuana
charges hinged on whether each particular criminal provision burdened the
practice of Rastafarianism. The Ninth Circuit found that the district court had
erred in prohibiting the defendants from using RFRA as a defense to simple
possession charges. Id. at 1559. However, "as to the counts relating to
conspiracy to distribute, possession with intent to distribute, and money
laundering, the religious freedom of the defendants was not invaded"
because "nothing before [the court] suggests that Rastafarianism would
require this conduct." Id. In a more recent Ninth Circuit case, the court
cited Bauer in holding that a criminal defendant could not draw on RFRA
to defend against charges brought under a Guam statute prohibiting the
importation of controlled substances. Guam v. Guerrero, 290 F.3d 1210
(9th Cir. 2002). The Guerrero court noted that it was "satisfied
that Rastafarianism does not require importation of a controlled
substance." Id. at 1223.
There is a second [**48] major distinction between the present case
and the cases involving claims that the principles of religious freedom reflected
in the Free Exercise Clause and RFRA should be interpreted as permitting the
sacramental use of marijuana. This distinction stems from the significant
differences in the characteristics of the drugs at issue. Affirming a trial
court's denial of a criminal defendants' request to rely in [*1254]
RFRA as a defense to marijuana charges, the Eighth Circuit stated "that
the government has a compelling state interest in controlling the use of
marijuana." United States v. Brown, 72 F.3d 134 (8th Cir. 1995) (table).
As support for this observation, the Brown court cited a number of First
Amendment opinions which had emphasized problems associated with marijuana in
particular. See, e.g., United States v. Greene, 892 F.2d 453, 456-57
(6th Cir. 1989) ("Every federal court that has considered this issue has
accepted Congress' determination that marijuana poses a real threat to
individual health and social welfare and had upheld criminal penalties for
possession and distribution even where such penalties may infringe to some
extent on the free [**49] exercise of religion."); United
States v. Middleton, 690 F.2d 820, 825 (11th Cir. 1982), quoting Leary
v. United States, 383 F.2d 851, 860-61 (5th Cir. 1967) ("It would be
difficult to imagine the harm which would result if the criminal statutes
against marihuana were nullified as to those who claim the right to possess and
traffic in this drug for religious purposes.")
The parties in this case have presented a great deal of evidence on the issue
of whether the United States has a compelling interest in prohibiting the UDV's
religious use of hoasca. Of course, regardless of what this evidence might
suggest regarding the dangers associated with hoasca, the Court cannot ignore
that the legislative branch of the government elected to place materials
containing DMT in Schedule 1 of the CSA, reflecting findings that substances
containing DMT have "a high potential for abuse," and "no
currently accepted medical use in treatment in the United States," and that
"there is a lack of accepted safety for use of [DMT] under medical
supervision." 21 U.S.C. § 812(b)(1). Discussing another statute concerning
controlled substances, the Supreme [**50] Court once noted,
"when Congress undertakes to act in areas fraught with medical and scientific
uncertainties, legislative options must be especially broad and courts should
be cautious not to rewrite legislation, even assuming, arguendo, that judges
with more exposure to the problem might make wiser choices." Marshall
v. United States, 414 U.S. 417, 427, 38 L. Ed. 2d 618, 94 S. Ct. 700
(1974). More recently, the Supreme Court's opinion in United States v.
Oakland Cannabis Buyers' Cooperative, 532 U.S. 483, 493, 149 L. Ed. 2d 722,
121 S. Ct. 1711 (2001) suggested that courts should accord a great deal of
deference to Congress's classification scheme in the CSA.
The Government argues that "Congress has made an affirmative statutory
declaration that materials containing DMT ... are unsafe." Response, at
27-28. If this Court were employing a more relaxed standard to review the
application of the CSA to the UDV's use of hoasca, it would be very reluctant
to question this Congressional finding concerning DMT. However, the Plaintiffs
are relying on RFRA, a more recent legislative enactment by Congress, to
challenge the extension of the CSA's ban on DMT to the UDV's religious
consumption of hoasca. Under RFRA, Congress mandated [**51] that a
court may not limit its inquiry to general observations about the operation of
a statute. Rather, "a court is to consider whether the 'application
of the burden' to the claimant 'is in furtherance of a compelling governmental
interest' and 'is the least restrictive means of furthering that compelling
governmental interest.' 42 U.S.C. § 2000bb-1(b) (emphasis added)." Kikumura,
242 F.3d at 962. In Kikumura, a case in which a federal prisoner was
challenging a decision made by prison officials, the Tenth Circuit Court of
Appeals noted that "under RFRA, a court does not consider the prison
regulation in its general application, but [*1255] rather considers
whether there is a compelling government reason, advanced in the least
restrictive means, to apply the prison regulation to the individual
claimant." Id.
RFRA requires that the Government "demonstrate[]" its compelling
interest and its use of the least restrictive means to accomplish that
interest. In enacting RFRA, Congress explicitly stated that "the term
'demonstrates' means meets the burdens of going forward with the evidence and
of persuasion." 42 U.S.C. § 2000bb-2. [**52] This Court
concludes that the Government has fallen short of meeting its difficult
burdens, which Congress requires. The Government has not shown that applying
the CSA's prohibition on DMT to the UDV's use of hoasca furthers a compelling
interest. n8 This Court cannot find, based on the evidence presented by the
parties, that the Government has proven that hoasca poses a serious health risk
to the members of the UDV who drink the tea in a ceremonial setting. Further,
the Government has not shown that permitting members of the UDV to consume
hoasca would lead to significant diversion of the substance to non-religious
use. The Court bases its determinations on the following facts.***
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 The Tenth Circuit has very recently observed that "whether something
qualifies as a compelling interest is a question of law." United States
v. Hardman, 297 F.3d 1116, No. 99-4210, 2002 WL 1790584, at *8 (10th Cir.
Aug. 5, 2002), citing Citizens Concerned About Our Children v. School Bel.,
193 F.3d 1285, 1292 (11th Cir. 1999); Concrete Works of Colo., Inc. v. City
and County of Denver, 36 F.3d 1513, 1522 (10th Cir. 1994). However, in this
case, there does not seem to be a dispute between the parties over whether, in
the abstract, the federal government has a compelling interest in protecting
the health and safety of people in the United States. Rather, the parties have
focused their arguments on the issue of whether the Government has met its very
heavy burden of showing that applying the CSA to the UDV's consumption of
hoasca furthers the Government's stated interests.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [**53]
a. HEALTH RISKS TO MEMBERS OF THE UDV
The consumption of hoasca tea plays a central role in the practice of the UDV
religion. Decl. of Jeffrey Bronfman, Exh. A. to Pltf. Mot. for Prelim. Inj., at
13. Hoacsa is a sacrament in the UDV. Church doctrine instructs that members
can fully perceive and understand God only by drinking the tea. Pltf. Exh. 21,
Decl. of David Lenderts, at 4. UDV members drink hoasca only during regular
religious services, held on the first and third Saturdays of every month and on
ten annual holidays. Decl. of Bronfman, at 8. A church leader called a
"directing mestre" generally conducts the service. Id. at 9.
Ceremonies start at 8 p.m. and last for about four hours. Id. at 8-10. The
mestre begins the service by distributing measured glasses of tea to each
participant. Id. at 10. Activities during UDV services include the recitation
of church law by selected congregants, the singing of sacred chants by the
mestre, question-and-answer exchanges between the mestre and participants, and
a period of religious teaching led by the mestre. Id. at 10.
Hoasca is brewed from two plants indigenous to the Amazon River Basin-Banisteriopsis
caapi and Psychotria viridis. [**54] Pltf. Exh. 11,
Decl. of Charles Grob, at 7. Psychotria contains dimethyltryptamine
(DMT), a hallucinogenic chemical. Id. By itself, psychotria does not
trigger an altered state of consciousness when taken orally, because monoamine
oxidase (MAO) enzymes in the digestive system inactivate the DMT psychotria
contains. Id. However, banisteriopsis contains harmala alkaloids, known
as beta-carbolines, that inhibit MAO's and prevent the inactivation of DMT.
Id.; Deft. Exh. ZZ, Rpt. of Sander Genser, at 6. Ingesting the combination of
[*1256] psychotria and banisteriopsis allows DMT to
reach levels in the brain sufficient to produce a significantly altered state
of consciousness. Deft. Exh. ZZ, Rpt. of Genser, at 6.
Scientists have devoted little research to the physical and psychological
effects of ceremonial hoasca consumption. Id. The lack of knowledge about
hoasca, relative to many other substances, forms the core of the dispute
between the parties in this case. The Plaintiffs' experts and the Government's
experts have offered differing interpretations of preliminary data, conflicting
views on the value of comparisons between hoasca and other hallucinogenic
drugs, and [**55] contrasting evaluations of whether certain
findings signify risks associated with hoasca use. Ultimately, the Plaintiffs
contend that evidence does not exist, to a reasonable degree of scientific
certainty, to conclude that the UDV's religious use of hoasca carries any
significant health risk. See, e.g., Hrg. Tr. at 207-08, testimony of Grob. The
Government, in contrast, maintains that existing evidence suggests that the
ingestion of hoasca poses substantial health concerns. See, e.g., Deft. Exh.
ZZ, Rpt. of Genser, at 5.
During the evidentiary hearing, the Plaintiffs presented the testimony of Dr.
Charles Grob, Professor of Psychiatry at the University of California, Los
Angeles. In 1993, Dr. Grob led a team of researchers in conducting a study of
the effects of hoasca use on UDV members in Brazil. The study compared fifteen
long-term members of the UDV, who had drunk hoasca for several years, with
fifteen control subjects who had never used hoasca. Pltf. Exh. 11, Decl. of
Grob, at 9-10. The researchers administered personality tests, psychiatric
interviews, neuropsychological tests, and physical examinations to all of the
subjects in the study. In addition, the subjects in the
experiment [**56] group completed a hallucinogen rating scale
questionnaire after they had participated in an hoasca ceremony. Researchers
also conducted life story interviews with the members of the experimental
group. Id.
The investigators reported their findings in a number of articles published in
scientific journals. While acknowledging that the study was only preliminary,
the researchers' overall assessment of the safety of hoasca use in the UDV was
positive. Discussing the study, Dr. Grob stated that, despite its limitations,
"our investigation did identify that in a group of randomly collected male
subjects who had consumed ayahuasca for many years, entirely within the context
of a very tightly organized syncretic church, there had been no injurious
effects caused by their use of ayahuasca. On the contrary, our research team
was consistently impressed with the very high functional status of the
ayahuasca subjects." Pltf. Exh. 12, 2nd Decl. of Grob, at 1. Of particular
interest to the researchers was that in the life story interviews, many of the
experimental subjects reported that they had engaged in self-destructive
behavior before joining the UDV and that their experiences in the UDV
had [**57] allowed them to lead responsible, meaningful lives. Pltf.
Exh. 11, Decl. of Grob, at 12-13.
The Government has criticized the Plaintiffs' reliance on the 1993 hoasca study
to show the safety of hoasca use. From a methodological standpoint, the
Government's experts maintain, the hoasca study has many limitations. For
example, the study employed a small sample size, the study included only male
subjects, and the study provided no baseline data that researchers could use to
compare information about subjects before and after participation in the hoasca
rituals of the UDV. Deft. Exh. JJJ, Rpt. of Alexander Walker, at 6-8; Deft.
Exh. ZZ, Rpt. of Genser at 6; Hrg. Tr. at 867-68, testimony of Genser;
[*1257] Hrg. Tr. at 743, testimony of Lome Dawson.
The Government has also questioned whether long-time members of the UDV can be
considered representative of UDV members in general. Dr. Alexander Walker, a
Professor of Epidemiology at the Harvard School of Public Health, has expressed
the view that selection bias undermined the value of the results generated
through the hoasca study:
According
to Dr. Grob and his coinvestigators, UDV adherents abstain from alcohol and
other intoxicating substances, [**58] they maintain high standards
of responsibility to family and society, they are diligent, and they are
respectful of their church's leadership. In selecting long-term members of the
UDV as their study group, the Hoasca Project team necessarily included persons
who were able to conform to the church's precepts over extended periods. There
was no similar requirement for stable, long-term, willing church attendance in
the comparison group. By itself, this one omission ensured that the
hoasca-consuming group would have a favorable psychological profile.
Deft. Exh. JJJ, Rpt. of Walker at 6. Dr. Lome Dawson, the Government's expert
on religion, testified that restricting the sample to long-term, committed
church members also creates methodological concerns because of problems that
generally accompany the collection of conversion accounts in the sociology of
religion. Dr. Dawson explained that:
Conversion
accounts, for example, almost always involve some kind of a somewhat
exaggerated statement of what their preconversion life was like in terms of the
sinfulness, perhaps, of their life or the ways in which they engaged in harmful
behavior or abused substances, as in this case. [**59] There is a
tendency to exaggerate how bad one's life was before they joined the group.
Then too, perhaps they also exaggerate how good life is now that they have
joined the group or been involved with the group.
Hrg. tr. at 745-46. Dr. Dawson stated that a superior sample would include
people who have belonged to the church for a short time and people who have
left the church under a range of circumstances, in addition to long-time church
members. Id. at 746-47.
In addition to pointing out the methodological limitations of the 1993 hoasca
study, the Government has articulated a number of concerns regarding the UDV's
ceremonial consumption of hoasca. Dr. Sander Genser, n9 one of the Government's
experts, stated in his report that "existing studies have raised flags
regarding potential negative physical and psychological effects" of
hoasca. Deft. Exh. ZZ, Rpt. of Genser, at 8. Some concerns derive from
potential dangers associated with DMT, hoasca's main psychoactive component. For
example, Dr. Genser has cited a study in which Dr. Rick Strassman administered
intravenous DMT to test subjects. Two subjects experienced such a high rise in
blood pressure that Dr. Strassman determined [**60] that researchers
should not include individuals with a history of hypertension in studies of
DMT. Id. Another of the subjects in Dr. Strassman's study suffered a recurrence
of depression. Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 Dr. Genser is the Chief of the Medical Consequences Unit of the Center on
AIDS and Other Medical Consequences of Drug Abuse at the National Institute on
Drug Abuse, National Institutes of Health.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
According to Dr. Genser, concerns about the safety of hoasca stem not just from
information known about other forms of DMT, but also from information known
about other types of hallucinogenic substances. [*1258] Id. Dr.
Genser has listed a broad range of adverse neuropsychological effects that have
been linked to hallucinogen use. For instance, Dr. Genser has described some
dangers associated with lysergic acid diethylamide (LSD), another
hallucinogenic substance that shares pharmacological properties with DMT. Id.
at 8-10 Particularly in individuals with pre-existing psychopathology, LSD may
produce prolonged psychotic reactions. Id. [**61] at 9. Users of
LSD may also be at risk for developing persisting perpetual disorder, known as
"flashbacks," in which individuals reexperience the effects of LSD at
times when they are not actually under the influence of the drug. Id. at 9-10.
The Plaintiffs dispute that evidence concerning intravenous DMT and evidence
about hallucinogens other than DMT represent strong indications that the UDV's
ceremonial hoasca use carries significant risk. With respect to the studies of
intravenous DMT, the Plaintiffs' experts have emphasized that differences in
the method of the administration of DMT translate into important differences in
how the drug is experienced. Intravenous DMT has a much more rapid onset, and
its effects are of much shorter duration, than hoasca taken orally. Dr. David
Nichols, Professor of Medicinal Chemistry and Molecular Pharmacology at Purdue
University, has observed that "orally ingested hoasca produces a less
intense, more manageable, and inherently psychologically safer altered state of
consciousness." Pltf. Exh. 24, Decl. of Nichols, at 7; see also Pltf. Exh.
12, 2nd Decl. of Grob, at 2. Further, Dr. Nichols has questioned whether
Strassman's study suggests that [**62] even intravenous DMT causes
hypertension. At the evidentiary hearing, Dr. Nichols testified that "if
you look at the pharmacology of DMT, there aren't serotonin site receptors in
the heart and cardiovascular system that would normally produce
life-threatening cardiovascular changes," and that in the case of the
hypertension reported by Strassman, "one could argue that that response
was related to the stress of the high dose." Hrg. Tr. at 1145.
Regarding the Government's evidence about the risks presented by other
hallucinogens, such as LSD, the Plaintiffs have noted the lack of evidence
connecting hoasca use with flashbacks. Dr. Grob has stated that "my
medical colleagues in the UDV inform me that they have never received a report
of persisting perpetual disorder ("flashbacks") induced by
ayahuasca," and that "I have also heard of no such report from any
other source." Pltf. Exh. 12, 2nd Decl. of Grob, at 3. As to other
negative neuropsychological effects identified with the use of hallucinogenic
drugs, the Plaintiffs have pointed to distinctions between hoasca and other
hallucinogens that may reduce the possibility that hoasca would induce adverse
reactions. The Plaintiffs note, [**63] for example, that the duration
is shorter and the intensity more mild for hoasca experiences, as compared to
some other classic hallucinogens. Pltf. Exh. 12, 2nd Decl. of Grob, at 3.
Further, the Plaintiffs emphasize that the circumstances under which an
individual takes a hallucinogenic drug, the "set and setting," are
crucial in determining the kind of experience that the individual has. See,
e.g., Hrg. Tr. at 1182-83, testimony of Nichols. Referring to the 1993 hoasca
study, Dr. Grob has commented that "it was the consistent observation by
members of our research team that the UDV had constructed a ceremonial
structure for their ritual use of hoasca that optimized safety and minimized
the likelihood of adverse consequences." Pltf. Exh. 11, Decl. of Grob, at
5. The Plaintiffs call attention to the fact that the UDV employs a range of
measures- from screening new church members for psychological instability to
observing members for problems during [*1259] church ceremonies- to
protect the safety of individuals ingesting hoasca. Id.
Along with evidence about DMT and other hallucinogens in general, the
Government has presented evidence more specific to the hoasca ingested in the
UDV. Both [**64] parties have devoted a substantial amount of
attention to a potential danger acknowledged even by the Plaintiffs-adverse
drug interactions. This danger stems from the presence of the component of
hoasca contributed by banisteriopsis- beta carbolines. Deft. Exh. ZZ,
Rpt. of Genser, at 11. Individuals who drink hoasca while on certain medications
may be at increased risk for developing serotonin syndrome, a condition
characterized by excessive levels of the neurotransmitter serotonin. For
example, several types of antidepressants, such as Prozac, contain selective
serotonin reuptake inhibitors (SSRI's). SSRI's trigger the release of serotonin
or prevent its reuptake. Hrg. tr. at 253, testimony of Grob. Monoamine oxidase
inhibitors interfere with the metabolization of serotinin, and as described
above, hoasca has MAO-inhibiting effects. Pltf. Exh. 11, Decl. of Grob, at 6.
Drinking hoasca while on an SSRI might create a dangerous interaction, because
the MAOI's in hoasca would hinder the metabolization of the greater levels of
serotonin made available through the use of the SSRI. In discussing the risk of
serotonin syndrome, the Government's experts noted that
"irreversible" MAO inibitors- [**65] those that
"bind to an MAO molecule and destroy its function forever"- may
interact harmfully with a number of medicines, as well as with a chemical found
in some common foods. Govt. Exh. ZZ, Rpt. of Genser, at 12. Irreversible MAO
inhibitors are often present in anti-depressant medications. Id.
Although the Plaintiffs concede that adverse drug interactions represent a risk
connected with hoasca use, they dispute that the risk is so substantial as to
require the Government to prohibit the religious consumption of the tea. The
Plaintiffs' experts have cited the following reasons for arguing that the
Government has overstated the danger of adverse drug interactions involving
hoasca. First, the Plaintiffs maintain that hoasca does not contain irreversible
MAO inhibitors, the type associated with the most severe drug interactions. Dr.
Grob has written that that "unlike pharmaceutical MAOI's ... the MAOI effect
in ayahuasca is relatively mild, with comparatively lesser degrees of risk for
dangerous interactions." Pltf. Exh. 12, 2nd Decl. of Grob, at 2. Dr. Grob
has indicated that in the cases of reactions between ayahuasca and SSRI's with
which he is familiar, "the duration of the [**66] event was
relatively brief when compared to more severe cases of serotonin syndrome
caused by combinations of SSRIs and pharmaceutical irreversible MAOIs."
Id. Similarly, Dr. Nichols testified for the Plaintiffs that "the possibility
of physiological consequences with the reversible MAO inhibitors is much
reduced when compared with the irreversible." Hrg. tr. at 1219.
Second, the Plaintiffs have placed great emphasis on the attention that UDV
leadership has paid to the danger of adverse drug interactions. Dr. Grob and
his colleague, Dr. J.C. Callaway, first identified the potential for negative
interactions between hoasca and SSRI's in a scientific article published in
1998. Pltf. Exh. 12, 2nd Decl. of Grob, at 2; Callaway, J.C. & Grob, C.S.
(1998). Ayahuasca Preparations and Serotonin Reuptake Inhibitors: A Potential
Combination of Severe Adverse Interaction. J. Psychoactive Drugs, 30.
Deft. Exh. KK. Dr. Grob has testified that the UDV has been receptive to
concerns about adverse drug reactions. He wrote in his second declaration that
"following discussions of our concerns with physicians of the UDV, all
prospective participants in ceremonial hoasca sessions [*1260] have
been carefully [**67] interviewed to rule out the presence of
ancillary medication that might induce adverse interactions with hoasca."
Pltf. Exh. 12, 2nd Decl. of Grob, at 6. See also Hrg. tr. at 254.
Finally, the Plaintiffs have attempted to downplay the risk of adverse
reactions posed by hoasca use, contending that serotonin syndrome is quite rare
and is not experienced by all individuals who ingest hoasca while taking
SSRI's. Hrg. tr. at 442-46, testimony of Glaucus Brito. The Plaintiffs have
portrayed the risk of serotonin syndrome associated with hoasca as falling
within the normal spectrum of concerns with drug interaction. They point out
that Government expert Dr. Genser stated, during the hearing, that he would be
more troubled by a person drinking grapefruit juice while taking a
contraindicated drug than by a UDV member taking hoasca in a ceremonial
context. Hrg. tr. at 964.
The Government has identified other indications that the UDV's hoasca use is
not as safe as the Plaintiffs claim. Data collected by DEMEC, the
medical-scientific department of the Brazilian UDV, raises particular concern.
Since 1996, DEMEC has gathered reports of cases of psychological problems
experienced by church members [**68] from the three most heavily
populated regions of Brazil. Hrg. tr. at 425-26, testimony of Brito. The organization's
records include retrospective reports of cases that had occurred in the five
years prior to 1996. Id. at 425. The DEMEC documents disclose that there have
been 24 incidents of psychosis among users of hoasca in church ceremonies. Dr.
Glaucus Brito, the director of DEMEC, testified that "out of these 24
cases, we have one in which the tea acts as a trigger with no prior
occurrences, and then we have seven in which the tea acted as a resharpening
mechanism for ... a prior mental condition that was not identified, but it was
identified during the course of the investigation by the psychiatrist."
Hrg. tr. at 424-25. Dr. Brito went on to explain that "out of these 24,
there were 11 in which there was no relationship whatsoever between the event
and the use of the tea." Id. at 425.
Dr. Genser has stated that the information contained in the DEMEC reports
reinforces his belief that hoasca use in the UDV presents a significant risk of
psychotic incidents. Dr. Genser testified that among the range of possible
physical and psychological effects that could be associated with
hoasca [**69] use, "psychosis is definitely of most
concern," in terms of both severity and likelihood. Hrg. tr. at 960-61.
Even if the percentage of psychotic episodes reported among UDV members was on
the low end of the average range for the general Brazilian population, he
explained:
I would
still be concerned because from all of the descriptions I have read, Dr.
Brito's deposition, the UDV, the DEMEC documents, Mr. Bronfman's deposition,
the UDV screens out a certain number of people with vulnerabilities to
psychosis and provides an environment that tends to encourage healthier
behaviors and healthier life-styles and provides a level of social
connectedness for the individual that- it's generally greater than the average
member of the general population. All of those factors would, I believe, tend
to lower the expected incidence of psychosis a good bit below that in the
general population. So the fact that the incidence of psychosis is still within
range of the general population, in combination with the fact that a number of
those incidents reported are attributed to the hoasca really strengthened my
concern about the hoasca.
Hrg. tr. at 862-63. Dr. Genser also stated that he [**70] would
expect that cases of psychosis [*1261] would be underreported to
the DEMEC monitoring system. Hrg. tr. at 861.
The Plaintiffs deny that available evidence suggests that hoasca use is likely
to cause severe psychotic events. Discussing the DEMEC documents, Dr. Grob
commented that many of the reported psychiatric problems "were relatively
transient in nature and resolved." Hrg. tr. at 251-52. In the "few
cases of very serious mental illness," the individuals "appeared to
have ... long-standing problems insofar as their mental function." Id. at
252. Dr. Grob doubted whether hoasca was a "key precipitant" in
several of the reported episodes- "in many of these cases the hoasca
seemed to be just coincidental to it." Id. In addition, Dr. Grob noted that
"given how many people participate and how many years they have been
trying to collect such data," the reports represent "a very small
number of cases." Id. at 252-53.
The Plaintiffs presented the testimony of Dr. Brito in support of their
argument that the rate of reported psychosis among UDV members in Brazil does
not exceed the rate of psychosis in the general population. About one percent
of the world's population is believed to be schizophrenic. [**71]
Hrg. tr. at 439. The DEMEC records were generated from observations of about
1,400 to 1,500 individuals participating in UDV ceremonies. Id. at 438. If 13
of these people experienced psychotic episodes linked in some way to hoasca,
this would represent only .9 percent of the observed participants. Id. Dr.
Brito stressed that the figure of .9 percent is based on conservative methods
of calculation. Id. at 439-440. If the 1,400 people observed were drinking the
tea twice a month during the years for which data was collected, calculating
the number of psychotic events per number of hoasca exposures would result in a
smaller percentage. Id.
The Government argues that research on UDV members suggests that hoasca may
have negative physical effects as well as negative psychological effects.
During the 1993 hoasca study, investigators found that eight of the fifteen
subjects in the test group had cardiac irregularities, while only one subject
in the control group had such irregularities. Hrg. tr. 504-05, testimony of
Brito. The Plaintiffs counter that cardiac alterations detected are not
necessarily linked with heart disease. For example, four of the eight test
subjects had bradychardia, [**72] or slow heartbeat, a condition
that is associated with young athletes as well as people with certain types of
heart disease. Hrg. tr. at 504, testimony of Brito; Hrg. tr. at 878-79,
testimony of Genser.
In discussing his concerns about hoasca use in his expert report, Dr. Genser
cited a recent study conducted by Jordi Riba. J. Riba, et al. (2001).
Subjective Effects and Tolerability of the South American Beverage Ayahuasca in
Healthy Volunteers. Psychopharmacology, 154, 85-95. Deft. Exh. BBB. The
researchers administered encapsulated ayahuasca, in increasing doses, to six
volunteers. Riba and his colleagues reported that "one volunteer
experienced an intensely dysphoric reaction with transient disorientation and
anxiety at the medium dose and voluntarily withdrew from the study." Id.
The Plaintiffs have questioned the applicability of the Riba study to an evaluation
of the risks presented by the UDV's ceremonial consumption of hoasca. The
Plaintiffs have observed that the concentrations of DMT and beta-carbolines in
the ayahuasca capsules administered by Riba were stronger than the
concentrations in the hoasca seized from the UDV. See Hrg. tr. at 871. The
Plaintiffs also emphasize [**73] that the Riba study did not take
place within a religious context, and that the anxiety experienced by the one
test subject was only transient in nature. Id. at 875-76.
[*1262] In considering the evidence submitted by the parties, this
Court has been struck by the closeness of the questions of fact presented in
this case. The Court has no doubt that in other contexts, the risks that the
Government has identified would be sufficient to support a decision against
allowing individuals to consume hoasca pending further study of the substance.
Indeed, even the scientific experts testifying on behalf of the Plaintiffs
appear to recognize the need for additional research into the health consequences
of ceremonial hoasca use.
However, in this case, the Plaintiffs have raised a claim under a powerful
statute passed by Congress specifically to override a ruling by the Supreme
Court of the United States. The Government concedes, at this stage, that
application of the CSA to the UDV's use of hoasca imposes a substantial burden
on the practice of the Plaintiffs' religion. By passing RFRA, Congress required
the Government to justify this imposition with a showing of a compelling
government interest. As [**74] to the subject of health risks, the
evidence presented by the parties is, essentially, in equipoise. This Court
cannot find, in light of the closeness of the evidence, that the Government has
successfully carried its onerous burden on the issue of health risks to UDV
members.
b. POTENTIAL FOR DIVERSION TO NON-RELIGIOUS USE
The Government alleges that it has a compelling interest not just in protecting
the physical and psychological health of the UDV members who wish to consume
hoasca, but also in ensuring of the safety of individuals who might ingest
hoasca in a non-ceremonial environment. If the UDV were allowed to use hoasca
in its church services, the Government argues, the tea could be diverted to
potentially harmful uses in non-religious, unsupervised settings. In contrast,
the Plaintiffs take the position- as articulated by their expert witness, Dr.
Mark Kleiman- that "there is no currently available evidence to suggest
that such [diversionary] effects, were they to occur, would be large." Pltf.
Exh. 16, decl. of Kleiman, at P 29.
The Government's analysis hinges on the factual premise that the hoasca used by
the UDV would be vulnerable to diversion. To help establish
this [**75] premise, the Government presented the expert opinions of
Terrance Woodworth, Deputy Director of the Drug Enforcement Administration's
Office of Diversion Control. Mr. Woodworth identified "several factors
that are relevant to the assessment of a controlled substance's potential for
diversion," including "the existence of an illicit market for the
substance, ... the existence of 'marketing' or publicity about the substance,
and the form of the substance." Deft. exh. ZZZ, Rpt. of Terrance
Woodworth, at 3. In addition, Mr. Woodworth stated, "[a] substance's
potential for diversion is also affected by the opportunity for, and the cost
of, diverting the substance, ... the level of control placed upon the
substance, the form of the substance, and the degree to which the substance is
in movement from place to place." Id. at 3-4.
The Government contends that the extent of the illicit market for hoasca would
be determined, in large part, by whether hoasca has a significant potential for
abuse. Dr. Donald Jasinski, one of the Government's expert witnesses, addressed
this question from the pharmacological standpoint. n10 He expressed the opinion
that the risk of abuse associated with hoasca [**76] is substantial.
He supports his conclusion by pointing first to evidence about the reinforcing
effects of DMT and hoasca. Positive reinforcing effects "are the transient
[*1263] alterations in mood, thinking, feeling, and perceptions
produced by [a] drug," and these "effects include elevation in mood,
pleasant thoughts, feelings of well being and relation, and perceptions that
surroundings were more pleasant." Deft. Exh. VVV, Rpt. of Jasinski, at
7-8. These positive effects, called "euphoria," are the primary
factors leading individuals to begin using, and to continue to use repeatedly,
a drug of abuse. Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 Dr. Jasinski is a Professor of Medicine at the Johns Hopkins School of
Medicine.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Dr. Jasinski noted that research on intravenous DMT indicates that the
substance produces euphoric effects. In Strassman's study, the investigators
"described the onset of psychological effects within two minutes with
effects completely resolved within 30 minutes with transient anxiety common,
replaced by euphoria." Deft. Exh. VVV, [**77] Rpt. of
Jasinski, at 9. To the extent that preliminary research has been performed on
ayahuasca, it appears that the substance induces effects similar to those
created by DMT, "although the effects are slower in onset, milder in
intensity, and longer in duration." The reported effects of ayahuasca
"include pleasant feelings and elevations in mood as well as dysphoric
(i.e., anxiety-producing) changes." Id.
Dr. Jasinski discussed not only the effects which suggest that hoasca would be
subject to abuse, but also some effects which might seem to limit hoasca abuse.
In particular, hoasca consumption often causes nausea and vomiting. While
acknowledging that these effects may act as a deterrent to some individuals,
Dr. Jasinski observed that it is unclear how many users experience nausea after
taking hoasca. Hrg. tr. at 997. Further, Dr. Jasinksi pointed out, negative
effects of substances do not necessarily outweigh the positive effects to the
extent that potential users are completely deterred from taking the substances.
Deft. Exh. VVV, Rpt. of Jasinski, at 9-10. In the case of ayahuasca, indigenous
people in South America have ingested the substance for centuries despite its
association [**78] with nausea and vomiting. Hrg. tr. at 999.
Dr. Jasinski stated that another source of evidence about the abuse potential
of ayahuasca is information known about LSD, a related drug. DMT produces
pharmacological effects similar to those produced by LSD. Although there are
some differences between LSD and DMT, "for the purpose of assessing abuse
potential ... the similarities ... outweigh the differences," and
"none of these differences necessarily detract from the abuse potential of
DMT." Deft. Exh. VVV, Rpt. of Jasinski, at 12. Dr. Jasinski believes that
DMT's pharmacological similarity to LSD, a drug recognized to have abuse
potential, lends support to his opinion that ayahuasca has susbtantial abuse
potential.
While Dr. Jasinski focused on ayahuasca's abuse potential from a
pharmacological perspective, Mr. Woodworth testified about patterns of drug use
in the United States that indicate that ayahuasca carries a significant
potential for abuse. During the evidentiary hearing Mr. Woodworth cited, for
example, National Household Survey on Drug Abuse results showing that
hallucinogen use in this country has risen substantially in recent years. Hrg.
tr. at 1388; Deft. Exh. CCCC. Mr. [**79] Woodworth expressed the
opinion that "the existence of the well-documented increasing interest in
and demand for hallucinogens greatly increases the potential for abuse- and
consequently diversion- of any substance having hallucinogenic qualities."
Deft. Exh. ZZZ, Rpt. of Woodworth, at 4.
Mr. Woodworth cited several reasons, in addition to hoasca's abuse potential,
for believing that there would be a demand for hoasca in the illicit market.
Advertisements for hoasca on the internet reflect growing interest in the drug,
he testified. [*1264] Hrg. tr. at 1392; Rpt. at 5; Exh. EEEE.
Increased publicity will, in turn, generate even more interest. Rpt. at 5.
Hoasca use in Europe, often a helpful indicator for determining the possibility
of the diversion in the United States, has risen substantially in recent years.
Id. Mr. Woodworth observed that hoasca's form- a tea- might contribute to the
substance's draw. He reasons that "drinking a cup of tea may appear more
appealing to some abusers than chewing a dried plant material, as is the case
with peyote, or shooting up, smoking, or snorting, as is done with many other substances
of abuse." Id. at 5-6.
Mr. Woodworth attributes the relatively low [**80] level of
ayahuasca abuse in the United States, at the present time, to the lack of
availability of the plant components in this country. Id. at 6. Mr. Woodworth
explained that if the UDV is permitted to import hoasca for their religious
ceremonies, the greater physical presence of the substance in the United States
will increase the likelihood of diversion and abuse. Id. Further, the
international transportation process itself will expose the tea to illicit
diversion. Controlled substances shipped in international commerce are
particularly vulnerable to diversion, whether through theft, loss, or fraud.
Id. at 6-7. Controls imposed by the country of origin may help reduce the risk
of diversion, Hrg. tr. at 1401, but in this case, the Brazilian government does
not carefully regulate the UDV's production of ayahuasca. Hrg. tr. at 1403.
The Government has suggested that there are specific characteristics of the UDV
that indicate that the hoasca shipped to the church would be prone to illegal
diversion. For example, Mr. Woodworth noted at the evidentiary hearing that the
federal government has established a cooperative, working relationship with the
Native American Church in order to minimize [**81] the diversion of
peyote. However, Mr. Woodworth doubts whether the government could build a
similar relationship with the UDV:
... based
on their lack of candor with regard to what has been brought in for the last
ten years. They have never contacted DEA. They have never attempted to get
registered with DEA. They have never tried to have hoasca exempted from
controlled status. And in the seizures, the documentation clearly was either
disguised or mislabeled.
Hrg. tr. at 1424. The Government further supported this argument through the
introduction of exhibits in the nature of UDV correspondence stressing the need
for confidentiality about church sessions, and shipping forms in which UDV
leaders in the United States listed hoasca as "herbal extract." See,
e.g., Deft. Exhs. NNNNN and RRRRR.
The Plaintiffs dispute the fundamental premises of the Government's arguments
on the diversion issue. They maintain, first, that hoasca does not carry the
significant potential for abuse that the Government attributes to the
substance. Dr. Kleiman, the Plaintiffs' expert, takes the position that demand
for hoasca would be relatively low, because of negative side effects
associated [**82] with the substance and because of the availability
of substitutes for hoasca. n11 Hrg. tr. at 680. Dr. Kleiman disagrees with Dr.
Jasinski about the deterrent effect of hoasca's nauseant properties. Dr.
Kleiman has written that "while many drug abusers tolerate a variety of
inconveniences and discomforts associated with the drugs they take and the ways
in which they take them, it is not [*1265] reported that drug
abusers as a class, or users of hallucinogens in particular, enjoy nausea or
vomiting." Pltf. Exh. 16, Decl. of Kleiman, at P 21. Dr. Kleiman explained
that individuals using hallucinogens may be even less inclined to tolerate
nausea than users of other types of drugs, by observing:
According
to the research literature, hallucinogenic substances, including DMT, score
much lower on scales measuring reinforcement, and have much less tendency to
create dependency, than opiates, such as heroin. That is, those exposed to
hallucinogens once display far less motivation to experience second and
subsequent doses than those exposed to opiates, and a far smaller proportion of
them develop drug dependency as defined by accepted clinical criteria
("addiction"). This would suggest that [**83] a much
smaller proportion of hallucinogen users than of opiate users would be so
strongly driven to seek out the drug experience as to neglect the presence of
side-effects.
Id. at P 22.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n11 Dr. Kleiman is a Professor of Policy Studies at the University of
California, Los Angeles.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Dr. Kleiman also stressed that individuals interested in experiencing the
effects of oral DMT would not necessarily demand the particular tea preparation
employed in UDV ceremonies. Rather, "any preparation that included DMT and
a sufficient quantity of any monoamine oxidase inhibitor would suffice."
Id. at P 16. Plants that contain DMT and plants that contain harmala alkaloids
are available in the United States. Id. at P 18. Some of the alternative
preparations combining DMT and haramala alkaloids do not induce nausea in the
way that hoasca does. Dr. Kleiman thus believes that "the widespread
availability of pharmacologically equivalent substitutes, some of them with
fewer unwanted side-effects and less apparent legal risk, [**84]
would greatly reduce the motivation to divert the sacramental material for
purposes of drug abuse." Id. at P 25.
Dr. Kleiman also mentioned other factors that would tend to prevent widespread
diversion of hoasca from the UDV. First, the United States UDV is a very small
church and would not be importing huge quantities of tea from Brazil- only
about 3,000 doses per year. Dr. Kleiman commented that, "even if, by some
happenstance, all 3,000 doses were diverted and you would ask me as a drug policy
expert: Did a big disaster just happen or not, I would say no, not a very big
disaster." Hrg. tr. at 696.
Second, the relative "thinness of the potential market" for hoasca
would reduce the likelihood of diversion that might occur with widely-used drugs.
Hrg. tr. at 697. A casual thief in possession of a pharmaceutical cocaine
shipment would have little trouble locating a buyer. In contrast, an individual
would probably need to have sonic specific knowledge about the extremely
limited hoasca market in order to distribute the tea. According to Dr. Kleiman,
the nature of the hoasca market may thus discourage potential diversion of the
tea to illicit use. Hrg. tr. at 698-99.
Third, the bulky [**85] form of hoasca would deter diversion. The
3,000 doses of tea that the UDV might import per year would produce several
hundred liters of liquid. Dr. Kleiman testified that there is an inverse
relationship between the volume of a substance and its susceptibility to theft.
During the evidentiary hearing, he stated that "the ease of stealing goes
up as the volume goes down. The larger the volume, the harder something is to
steal." Hrg. tr. at 718.
Finally, Dr. Kleiman emphasized that the UDV has a strong motivation for
keeping the hoasca supply from being diverted. The tea "is considered a
sacrament within the UDV, and its use outside the ceremonial religious context
of the church is considered by members of the UDV to be sacrilegious."
[*1266] Pltf. Exh. 16, Decl. of Kleiman, at P 26. Dr. Kleiman
believes that the UDV's interest, under church doctrine, in preventing hoasca
from being used improperly would make it likely that the church would cooperate
with governmental authorities to track down any tea that is diverted. Hrg. tr.
at 703.
As on the issue of health risks to UDV members, the parties have presented
virtually balanced evidence on the risk of diversion issue. n12 Again, this
Court [**86] finds that the Government has failed to meet its
difficult burden of showing a compelling interest in preventing the diversion
of hoasca to illicit use.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 The Court notes that the specificity of Dr. Kleiman's analysis may even tip
the scale slightly in favor of the Plaintiffs' position.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
c. 1971 CONVENTION ON PSYCHOTROPIC SUBSTANCES
Upon its initial review of the parties' briefs, the Court believed that the
Government's strongest arguments for prohibiting the UDV's use of hoasca stemmed
from concerns about the safety of drinking the tea in a religious setting and
the problems that might emerge if hoasca were diverted to use in non-religious
settings. For that reason, the Court asked the parties to present evidence on
these two subjects during the hearing held in October and November, 2001.
However, the Government has alleged a third compelling interest in addition to
those addressed at the hearing. According to the Government, the United States
must apply the CSA's ban on DMT to the UDV's use of hoasca in
order [**87] to adhere "to an important international treaty
obligation." Response, at 16.
The United Nations Convention on Psychotropic Substances, represents an
international effort "to prevent and combat abuse of [psychotropic] substances
and the illicit traffic to which it gives rise." United Nations Convention
on Psychotropic Substances, 1971, opened for signature February 21, 1971, 32
U.S.T. 543, 1019 U.N.T.S. 175, at Preamble. The treaty was opened for signature
in 1971, entered into force in 1976, and was ratified by the United States in
1980. Decl. of Robert Dalton, Exh. B. to Deft. Response, at P 3. More than 160
nations are party to the treaty, including Brazil. The treaty adopts a
scheduling system for substances similar to that found in the CSA. DMT is
listed in Schedule I, the category subject to the strictest controls. Article 7
provides that parties to the treaty "prohibit all use" of Schedule I
substances, "except for scientific and very limited medical
purposes." Article 7(a). Parties must also "prohibit export and
import" except under very restrictive conditions. Article 7(f).
The Government asserts that the Convention on Psychotropic Substances requires
the [**88] United States to ban the UDV's ceremonial consumption of
hoasca. Article 3(1) of the treaty makes clear that "a preparation is
subject to the same measures of control as the psychotropic substances which it
contains." The treaty defines a preparation as "any solution or
mixture, in whatever physical state, containing one or more psychotropic
substances." Article 1(f)(i). The Government appears to contend that even
if the treaty's prohibition on DMT did not include hoasca tea, the provisions
regarding "preparations" clearly extend the treaty's coverage to hoasca.
The Government notes that the treaty permits exceptions for the religious use
of drugs, but argues that those exceptions are not applicable to the UDV.
Article 32(4) reads:
[*1267] A State on whose territory there are plants growing wild
which contain psychotropic substances from among those in Schedule I and which
are traditionally used by certain small, clearly determined groups in magical
or religious rites, may, at the time of signature, ratification or accession,
make reservations concerning these plants, in respect of the provisions of
article 7, except for the provisions relating to international trade.
The United [**89] States could not have relied on this provision to
justify permitting the religious use of hoasca because, among other reasons,
the plant ingredients of hoasca are not indigenous to this country. The
Government argues that the treaty's specific allowance for religious exceptions
under particular circumstances implies that the treaty does not permit other
exceptions for religious use of scheduled substances.
Abiding by the terms of the Convention on Psychotropic Substances is, the
Government maintains, a compelling interest. In general, principles of
international law instruct that nations must honor the obligations imposed
through treaties. For example, the Vienna Convention on the Law of Treaties
states that "every treaty in force is binding upon the parties to it and
must be performed by them in good faith." Decl. of Dalton, Exh. B. to
Deft. Response, at P 10. The Government takes the position that the United
States has a particular interest in adhering to the Convention on Psychotropic
Substances. The United States calls on the treaty to elicit cooperation from
other nations in fighting international drug trafficking. According to the
Government, breaching the obligations set forth [**90] in the
Convention would undermine the United States' efforts to encourage other
nations to comply with the agreement, and might interfere with the willingness
of other nations to form treaties with the United States in the future. Id. at
P 12.
In responding to the Government's position, the Plaintiffs challenge whether
the Convention on Psychotropic Substances actually applies to hoasca. The
Plaintiffs point out that there are several indications that plants containing
scheduled hallucinogenic substances are not necessarily prohibited under the
treaty. The Commentary on the Convention on Psychotropic Substances, published
by the United Nations in 1976, suggests that the listing of a chemical
component in the treaty does not imply that a plant containing that chemical is
likewise banned. For example, the Commentary notes that:
Schedule I
does not list any of the natural hallucinogenic materials in question, but only
chemical substances which constitute the active principles contained in them.
The inclusion in Schedule I of the active principle of a substance does not
mean that the substance itself is also included therein if it is a substance
clearly distinct from the substance [**91] constituting its active
principle. Neither the crown (fruit, mescal button) of the Peyote cactus nor
the roots of the plant Mimosa hostilis nor Psilocybe mushrooms themselves are
included in Schedule I, but only their respective active principles, mescaline,
DMT and psilocybine.
Commentary, at 387. Elsewhere, the Commentary states that "plants as such
are not, and- it is submitted- are also not likely to be, listed in Schedule I,
but only some products obtained from plants." Id. at 385.
Under the interpretation of the Convention favored by the Plaintiffs, the
treaty included a provision allowing nations to reserve some religious uses of
indigenous plants so that parties could ensure that any scheduling of plants in
the future [*1268] would not interfere with certain religious
practices; the reservation provision was not inserted because plants are
presently illegal under the treaty. The Commentary provides support for this
analysis, noting that because there is a possibility "that the fruit of
the Peyote cactus, the roots of Mimosa hostilis, Psilocybe mushrooms or other
hallucinogenic plant parts used in traditional magical or religious rites will
in the future be placed in Schedule [**92] 1," that parties
could "make a reservation assuring them the right to permit the
continuation of the traditional use in question." Id. at 387.
Certainly the United States Senate Committee on Foreign Relations, when it
recommended the ratification of the Convention, seemed to hold the view that
plants were not automatically covered through the listing of their chemical
components. The Committee's report stated that:
Since
mescaline, a derivative of the peyote cactus, is included in Schedule I of the
Convention, and since the inclusion of peyote itself as an hallucinogenic
substance is possible in the future, the Committee accepted the
Administration's recommendation that the instrument of ratification include a
reservation with respect to peyote harvested and distributed for use by the
Native American Church in its religious rites.
S. Exec. Rept. No. 96-29, Convention on Psychotropic Substances, 96th Cong.,
2d. Sess., at 4 (1980).
In addition, the Plaintiffs provide examples of how, in operation, the treaty
seems to reflect the understanding that the listing of a hallucinogenic
chemical does not imply the listing of a plant containing that chemical. While
the United [**93] States made a reservation for the use of peyote by
the Native American Church within this country, under Article 32(4), it did not
make a reservation to export peyote for use by religious groups in other
countries. However, the United States apparently permits the exportation of
peyote to Native American Church groups in Canada. See 37 Tex. Admin. Code §§
13.81-87 ; Exh. T to Pltf. Reply (list of Canadian Native American Church
organizations registered with the Texas Department of Public Safety.)
Exportation of a Schedule I substance for other than scientific or medical
purposes would appear to violate the Convention, in the absence of a
reservation. The conduct of the parties to the Convention, concerning the
export of peyote, therefore suggests that peyote is not a scheduled substance,
although mescaline is.
The Plaintiffs present a very persuasive analysis as to why plants containing
hallucinogenic chemicals are not necessarily covered within Schedule I of the
Convention. As the Defendants have emphasized, though, and as this Court noted
above, the treaty contains special provisions regarding preparations: "a
preparation is subject to the same measures of control as the
psychotropic [**94] substance which it contains." Article 3(1).
In applying the treaty to hoasca, it would be possible to conclude that even if
Schedule I does not cover psychotria viridis- the plant component of
hoasca that contains DMT- Schedule I does extend to hoasca tea under the
treaty's "preparation" provision. To counter this proposition, the
Plaintiffs have offered strong arguments concerning why, if the treaty does not
extend to psychotria viridis, the treaty would not extend to a tea made
from a combination of psychotria viridis and another plant.
First, the Plaintiffs rely on the statement in the Commentary to the
Convention, quoted above, that "the inclusion in Schedule I of the active
principle of a substance does not mean that the substance itself is also
included therein if it is a substance clearly distinct from the substance
[*1269] constituting its active principle." Commentary, at
387. The Plaintiffs maintain that hoasca is clearly distinct from DMT, just as psychotria
viridis is, and that there are no indications that the tea-making process
produces a chemical separation of DMT.
Second, the Plaintiffs point out that the Commentary appears to assume that
infusions and beverages [**95] made from plants containing hallucinogenic
substances do not fall within Schedule 1. In noting that "neither ... the
roots of the plant Mimosa hostilis nor Psilocybe mushrooms themselves are
included in Schedule I, but only their respective active principles," the
Commentary observes by footnote that "an infusion of the roots is
used" to consume Mimosa hostilis, and that "beverages ... are
used" to consume Psilocybe mushrooms. Commentary, at 387; nn. 1227-28.
Based on the analysis offered by the Plaintiffs, this Court finds that the 1971
Convention on Psychotropic Substances does not apply to the hoasca tea used by
the UDV. n13 Therefore, the United States' interest in adhering to the
Convention does not, in this case, represent a compelling reason for extending
the CSA's ban on DMT to the UDV's ceremonial hoasca use.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13 This Court acknowledges that its conclusion that the Convention on
Psychotropic Substances does not extend to hoasca, without explanation, may appear
to conflict with its interpretation of a similar provision in the CSA. However,
the Convention significantly differs from the CSA in that the Convention
introduces on its face, through the reservation provision, the proposition that
plants may receive different treatment than chemical components. Given this,
the Court felt it appropriate to turn to the Commentary, which makes clear
that, unlike the CSA, the scheduling of a hallucinogenic chemical in the
Convention does not imply the scheduling of a plant that contains that
chemical.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [**96]
2. LEAST RESTRICTIVE MEANS
Under RFRA, the Government must establish not only that a burden placed on an
individual's religious practice "is in furtherance of a compelling
governmental interest," but also that the burden "is the least
restrictive means of furthering that compelling governmental interest." 42
U.S.C. § 2000bb-1(b). In this case, the Court has concluded that the Government
has failed to carry its heavy burden of showing a compelling government
interest in protecting the health of UDV members using hoasca or in preventing
the diversion of hoasca to illicit use. In addition, the Government has not
demonstrated that prohibiting the UDV's ceremonial use of hoasca furthers an
interest in adhering to the 1971 Convention on Psychotropic Substances, because
the treaty does not appear to extend to hoasca. The Court thus does not reach
the question of whether the Government has employed the least restrictive means
of accomplishing its stated goals.
IV. REMAINING REQUIREMENTS FOR PRELIMINARY INJUNCTION
The Court has found that the Plaintiffs have demonstrated a substantial
likelihood of success as to their RFRA claim. As this Court
noted [**97] in its discussion of the standard of review, parties
seeking preliminary injunctions must show not only a substantial likelihood of
success on the merits, but also that there will be "irreparable injury to
the movant if the preliminary injunction is denied," that "the
threatened injury to the movant outweighs the injury to the other party under
the preliminary injunction," and that "the injunction is not adverse
to the public interest." Kikumura, 242 F.3d at 955.
With respect to the first of these other requirements, Tenth Circuit law
indicates that the violations of the religious exercise [*1270]
rights protected under RFRA represent irreparable injuries. In Kikumura,
the Tenth Circuit observed that "courts have held that a plaintiff
satisfies the irreparable harm analysis by alleging a violation of RFRA."
Id. at 963. In support of this proposition the Kikumura court quoted the
Second Circuit, which has held that "although the plaintiff's free
exercise claim is statutory rather than constitutional, the denial of
plaintiff's right to the free exercise of his religious beliefs is a harm that
cannot be adequately compensated monetarily." Jolly v. Coughlin, 76
F.3d 468, 482 (2d Cir. 1996). [**98]
The Tenth Circuit's emphasis on the harms presented by the violation of
religious rights, reflected in the Kikumura case, also informs this
Court's conclusions regarding whether the Plaintiffs have met the remaining two
requirements for preliminary injunction. This Court acknowledges that the
Government has presented a great deal of evidence suggesting that hoasca may
pose health risks to UDV members and may be subject to diversion to
non-religious use. However, in balancing the Government's concerns against the
injury suffered by the Plaintiffs when they are unable to consume hoasca in
their religious ceremonies, this Court concludes that, in light of the
closeness of the parties' evidence regarding the safety of hoasca use and its
potential for diversion, the scale tips in the Plaintiffs' favor. Likewise,
this Court believes that an assessment of whether a preliminary injunction
would be adverse to the public interest must take into account the public's
interest in the vindication of the religious freedoms protected under RFRA- a
statute which Congress, as the representative of the public, enacted
specifically to countermand a Supreme Court ruling. See, e.g., Elam
Constr., Inc. v. Regional Transp. Dist., 129 F.3d 1343, 1347 (10th Cir.
1997) [**99] (stating in the context of a Constitutional claim that
"the public interest ... favors plaintiffs' assertion of their First
Amendment rights.") This Court thus concludes that the Plaintiffs have
satisfied the requirements for preliminary injunction as to their RFRA claim.
V. CONCLUSION
The Plaintiffs have failed to establish a likelihood of success on the merits
of their claims under Equal Protection principles, the Free Exercise of the
First Amendment to the United States Constitution, canons of statutory
construction, and the international law of comity. However, the Court has
concluded that the Plaintiffs are likely to succeed on the merits of their
claim under RFRA. In addition, the Plaintiffs have satisfied the other
requirements for preliminary injunction on the basis of their RFRA claim.
This Court has scheduled a hearing on August 19, 2002 to discuss with counsel
issues concerning the nature and implementation of the preliminary injunctive
relief to which the Plaintiffs are entitled. The Court will address the
Plaintiffs' APA argument at that time, as well as the Plaintiffs' contention
that the Fourth and Fifth Amendments to the United States Constitution require
the [**100] Government to return to the UDV the hoasca confiscated
by the Government.
IT IS THEREFORE ORDERED that:
1) The Plaintiffs' Motion for Preliminary Injunction (Doc. No. 10) is denied as
to:
a) Their claim under the First Amendment to the United States Constitution;
b) Their claim that the CSA does not apply to hoasca;
c) Their claim that principles of international law require that the Government
permit the UDV's hoasca use; and
d) Their claim under the Equal Protection Clause of the Fourteenth Amendment,
made applicable to federal statutes by the [*1271] Due Process
Clause of the Fifth Amendment.
2) The Plaintiffs' Motion for Preliminary Injunction is granted as to their
claim under the Religious Freedom Restoration Act;
3) A hearing on the form of preliminary injunction is set for August 19, 2002
at 1:30 p.m.
James A. Parker
CHIEF UNITED STATES DISTRICT JUDGE
IN
THE UNITED STATES DISTRICT COURT
FOR
THE DISTRICT OF NEW MEXICO
O CENTRO ESPIRITA
BENEFICIENTE
UNIAO DO VEGETAL
(a.k.a. Uniao do
Vegetal)
(USA) ("UDV-USA"), a New Mexico
Corporation on its own behalf and
on behalf
of all its members in the United
States,
JEFFREY BRONFMAN, individually and
as
President of UDV-USA, CHRISTINA
BARRETO, individually and as
Secretary of
UDV-USA, FERNANDO BARRETO,
individually and as Treasurer of
UDV-USA,
CHRISTINE BERMAN,
MITCHEL
BERMAN, JUSSARA de
ALMEIDA DIAS,
PATRICIA DOMINGO,
DAVID
LENDERTS, DAVID MARTIN, MARIA
EUGENIA
PELAEZ, BRYAN REA, DON
ST. JOHN, CARMEN TUCKER, and
SOLAR LAW, individually and as
members
of UDV-USA,
Plaintiffs,
v.
CIV. No. 00-1647 JP/RLP
JOHN ASHCROFT, Attorney General of
the
United States, DONNIE R. MARSHALL,
Administrator of the United States
Drug
Enforcement Administration, PAUL
H.
O'NEILL, Secretary of the
Department of
Treasury of the United States,
DAVID
IGLESIAS, United States Attorney
for the
District of New Mexico, and JOHN
O'TOOLE, Resident Special Agent in
Charge of the United States
Customs Service
Office of Criminal Investigation
in
Albuquerque, New Mexico, all in
their
official capacities,
Defendants.
MEMORANDUM OPINION AND ORDER
The Plaintiffs' Motion for
Preliminary Injunction (Doc. No. 10), filed December 22,
2000, raised the following issues:
1.
Whether the federal government
infringed Plaintiffs' rights under the Equal
Protection Clause of the
Fourteenth Amendment to the United States
Constitution, made applicable to
federal statutes by the Due Process Clause of the
Fifth Amendment, by selectively
enforcing the Controlled Substances Act (CSA)
against Plaintiffs. In a
Memorandum Opinion and Order filed February 25, 2002,
this Court ruled that the
Defendants did not violate Plaintiffs' rights under the
Equal Protection Clause.
'
This Court recognizes that in
addition to the claims discussed in this
Memorandum Opinion and Order, the
Plaintiffs' Complaint and Motion for Preliminary
Injunction included a claim under
the Administrative Procedure Act (APA), 5 U.S.C. § 701-706.
The APA grants courts the
authority to "hold unlawful and set aside agency action, findings, and
conclusions found to be ...
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; ... contrary
to constitutional right, . . . [or] in excess of statutory
jurisdiction, authority, or
limitations, or short of statutory right." 5 U.S.C. § 706(2). As the
Government observes, the
Plaintiffs' APA claim is derivative- it hinges on the success of the
Plaintiffs' analyses of their
other claims. The main significance of the APA claim at this stage of
litigation seems to relate to the
type of relief that the Plaintiffs seek. The Plaintiffs maintained in
their brief in support of their
Motion for Preliminary Injunction that the APA empowers this
Court to set aside the
Government's decision that the Plaintiffs are subject to prosecution for
possessing hoasca and to order the
Government to return the seized hoasca to the UDV.
The Plaintiffs' Complaint and
Motion for Preliminary Injunction also raised claims under
the Fourth and Fifth Amendments to
the United States Constitution. Under the Fourth
Amendment, the Plaintiffs argue
that the Government lacked a legal basis to seize the hoasca
belonging to the Plaintiffs, and
under the Fifth Amendment, the Plaintiffs argue that they were
deprived of their hoasca without
due process of law. The Plaintiffs rely on their Fourth and Fifth
Amendment theories to maintain
that they are entitled to the return of the hoasca. The Court
believes that, like the APA claim,
these claims are derivative of the claims asserted by the
Plaintiffs that are discussed at
great length in this Memorandum Opinion and Order.
Because the Plaintiffs' APA,
Fourth Amendment, and Fifth Amendment claims primarily
concern questions about the type
of relief the Plaintiffs seek, the Court will defer ruling on these
claims at this time.
2.
Whether, as Plaintiffs contend,
several canons of statutory construction instruct
that the CSA's treatment of
dimethyltryptamine (DMT) as a controlled substance
does not extend also to include
hoasca as a controlled substance. The Court
rejects this argument and holds
that the plain language of CSA chosen by
Congress clearly covers hoasca as
a controlled substance.
3.
Whether by interpreting CSA to
prohibit the Plaintiffs' use of hoasca, the
Defendants have violated
Plaintiffs' rights under the Free Exercise Clause of the
First Amendment to the United
States Constitution by restricting Plaintiffs'
religious practices, which focus
on the use of hoasca. The Court concludes that
the Defendants have not infringed
Plaintiffs' rights under the First Amendment
because Congress drafted and
promulgated CSA as a neutral law of general
applicability and the burden it
puts on Plaintiffs' practices does not violate the
First Amendment.
4.
Whether doctrines of international
law direct that Defendants, as representatives
of the United States government,
should per
hoasca. The Court rules that
international law principles do not override
Congress' clear application of the
CSA to any use of hoasca in the United States.
5.
Whether the Defendants have met
the heavy burden, imposed by Congress on the
government through passage of the
Religious Freedom Restoration Act (RFRA),
to prove that the GSA's
restriction on Plaintiffs' religious practices regarding use
of hoasca furthers a compelling
governmental interest through the least restrictive
means. The Court begins with the
observation that Defendants, at this stage of
the Plaintiffs' ceremonial use of
this action, have explicitly
conceded that Plaintiffs have established a prima facie
case under RFRA, and the Court
concludes that, on the basis of the evidence
presented thus far, the government
has failed to meet its high burden of proof,
entitling Plaintiffs to a
preliminary injunction based on RFRA.
I. BACKGROUND
This case centers on a tea, called
hoasca, brewed from two plants native to the Amazon
River Basin in South America. The
consumption of hoasca plays a central role in the religious
ceremonies of the O
Centro Espirita Beneficiente Uniao do Vegetal (UDV).' Founded in Brazil
in 1961, the UDV church blends
Christian theology with traditional indigenous religious beliefs.
Church doctrine instructs that
hoasca is a sacrament, and UDV members ingest the tea during
church services. About 8,000
people belong to the UDV in Brazil. In 1993, the UDV officially
established a branch of the church
in the United States. The United States branch of the UDV,
headquartered in Santa Fe, New
Mexico, has about 130 members.
The plants used to make hoasca do
not grow in this country, and prior to 1999, UDV
leaders in the United States
imported the tea from Brazil for use in church ceremonies. On May
21, 1999, the United States
Customs Service seized a substantial quantity of hoasca from the
UDV in the United States. The
federal government takes the position that the Controlled
Substances Act (CSA), 21 U.S.C. §
801, et seq., prohibits the possession and use
of hoasca. One
of the plant components of the tea
contains dimethyltryptamine (DMT), a hallucinogenic
chemical. Under the CSA, DMT is a
"Schedule I" controlled substance and hence subject to
The term "hoasca" refers
to the specific tea preparation used in the UDV.
"Ayahuasca" is a broader
term that refers to a category of South American teas containing DMT
and beta-carbolines. Some
witnesses quoted in this Memorandum Opinion and Order use the
terms "hoasca" and
"ayahuasca" interchangeably.
4
strict controls. Although the
United States has not filed any criminal charges stemming from
UDV officials' possession of
hoasca, the government has threatened prosecution for future
possession of the tea. In light of
the government's interpretation of the CSR's application to
hoasca, the UDV has ceased using
the tea in the United States.
The Plaintiffs in the present
action are the United States branch of the UDV, as well as
several church leaders and members
in the United States. On November 21, 2000, the Plaintiffs
filed a Complaint for Declaratory
and Injunctive Relief (Doc. No. 1), alleging violations of the
Religious Freedom Restoration Act,
the First Amendment to the United States Constitution,
Equal Protection principles, the
Fourth Amendment, the Fifth Amendment, the Administrative
Procedure Act, and international
laws and treaties. In addition, the Complaint asserts that the
CSA does not apply to hoasca. On
December 22, 2000, the Plaintiffs filed a Motion for
Preliminary Injunction (Doc. No.
10). This Court held a hearing on the Plaintiffs' motion
October 22 through November 2,
2001, during which the parties presented evidence and
arguments on a number of issues.
As previously noted, on February
25, 2002, the Court entered a Memorandum Opinion
and Order denying the Plaintiffs'
Motion for Preliminary Injunction as to their Equal Protection
claim. This Memorandum Opinion and
Order addresses the other grounds on which the
Plaintiffs base their Motion for
Preliminary Injunction.
11.
STANDARD OF REVIEW
Under Tenth Circuit law, "[a]
movant is entitled to a preliminary injunction if he can
establish the following: (1) a
substantial likelihood of success on the merits of the case; (2)
irreparable injury to the movant
if the preliminary injunction is denied; (3) the threatened injury
to the movant outweighs the injury
to the other party under the preliminary injunction; and (4)
the injunction is not adverse to
the public interest." Kikumura v. Hut-ley, 242 F.3d
950, 955
(10th Cir. 2001). This
Memorandum Opinion and Order focuses on the Plaintiffs' likelihood of
success on the merits of their
First Amendment, RFRA, statutory construction, and international
law claims.
This Court recognizes that
"[i]f the party seeking the preliminary injunction can establish
the last three factors ... then
the first factor becomes less strict--i.e., instead of showing a
substantial likelihood of success,
the party need only prove that there are `questions going to the
merits ... so serious,
substantial, difficult, and doubtful as to make the issue ripe for litigation
and
deserving of more deliberate
investigation."' Prairie Band of Potawatomi Indians v. Pierce, 253
F.3d 1234, 1246-1247 (10th
Cir.2001), quoting Federal Lands Legal Consortium v. United
States, 195 F.3d 1190, 1194 (10th Cir. 1999).
However, given the breadth of the parties'
briefing in this case, and the
extensiveness of the arguments and evidence presented at the
hearing, it seems appropriate to
consider the substance of the Plaintiffs' claims at this time. The
Court's decisions in this
Memorandum Opinion and Order will not foreclose the parties from
presenting additional evidence at
a trial on the merits. For example, this Court understands that
the Government may wish to
contest at a later time whether the Plaintiffs have established a
prima facie case under RFRA, and
that the Plaintiffs may wish to develop a selective prosecution
argument.
III. DISCUSSION
A.
FIRST AMENDMENT CLAIM
The First Amendment to the United
States Constitution states that "Congress shall make
no law respecting an establishment
of religion, or prohibiting the free exercise thereof . . . ." The
Supreme Court has observed that
"[i]n addressing the constitutional protection for free exercise
of religion, [its] cases establish
the general proposition that a law that is neutral and of general
applicability need not be
justified by a compelling governmental interest even if the law has the
incidental effect of burdening a
particular religious practice." Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S.
520, 531 (1993),
citing Employment Division, Department of
Human Resources of Oregon v.
Smith, 494 U.S.
872 (1990). In contrast, a law that is not neutral
and is not generally applicable
"must be justified by a compelling governmental interest and
must be narrowly tailored to
advance that interest." Lukumi, 508 U.S. at 531-32.
While an evaluation of a free
exercise claim typically begins by considering whether the
plaintiffs have shown that a
governmental action substantially burdens their religious practices,
Hernandez v. Commissioner of
Internal Revenue, 490
U.S. 680, 699 (1989), the Court need not
address that preliminary issue in
this case. The Government does not contest, at this stage of
litigation, that its
interpretation of the CSA which prohibits ceremonial hoasca use substantially
burdens the Plaintiffs' exercise
of their religion. Therefore, this Court turns to the question of
whether the CSA is a neutral law
of general applicability.
The Plaintiffs argue that the CSA
"cannot be characterized as a neutral law of general
applicability," because the
statute "provides a wide variety of exceptions, exemptions and
licenses permitting the use of
controlled substances in non-religious settings." Reply, at 31. As
support for their argument that
the CSA is neither neutral nor generally applicable, the Plaintiffs
point to the exemptions set forth
in the statute for certain uses of controlled substances. For
example, 21 U.S.C. § 872(e)
provides that the Attorney General "may authorize the possession,
distribution, and dispensing of
controlled substances by persons engaged in research."
Elsewhere in the CSA, 21 U.S.C. §§
822 and 823 outline procedures for the Attorney General to
use in registering entities that
engage in the manufacture and distribution of controlled
substances for medical,
scientific, research, and industrial purposes.
As the Government observes, the
Plaintiffs' analysis seems to deviate from Supreme
Court and Tenth Circuit precedent
regarding whether controlled substances laws are neutral and
generally applicable. In Smith,
the Supreme Court considered an Oregon drug statute which
prohibited the possession of
peyote, among other substances, and which contained no exception
for the religious use of
controlled substances. The plaintiffs in Smith had been fired from their
jobs for consuming peyote in a
ceremonial setting, and the state denied their applications for
employment benefits on the basis
that the plaintiffs' dismissal stemmed from their use of a
controlled substance. The
plaintiffs maintained that Oregon had violated their free exercise
rights by enforcing the statutory
prohibition against peyote to restrict the plaintiffs' religious use
of the substance.
Rejecting the Smith plaintiffs'
argument, the Supreme Court stated that its "decisions
have consistently held that the
right of free exercise does not relieve an individual of the
obligation to comply with a `valid
and neutral law of general applicability on the ground that the
law proscribes (or prescribes)
conduct that his religion prescribes (or proscribes)."' Id. at 879,
quoting United States v. Lee, 455
U.S. 252, 263, n.3 (1982) (Stevens, J., concurring in
judgment). The Government stresses
that the Oregon law upheld in Smith provides exemptions
for the use of controlled
substances similar to those outlined in the federal Controlled Substances
Act. O.R.S. § 475.125. Thus,
according to the Government, "Smith itself effectively answers
Plaintiffs' claim that the
medical, scientific, industrial, and research exemptions contained in the
Controlled Substances Act render
the Act non-neutral and not generally applicable." Response,
at 39.
The Tenth Circuit relied on Smith
in order to reach its decision in United States v.
Meyers, 95 F.3d 1475 (1996). In Meyers, a
criminal defendant charged with marijuana offenses
under the federal Controlled
Substances Act alleged that his adherence to the "Church of
Marijuana" required him to
distribute the drug. The Tenth Circuit declined to accept Mr.
Meyers's argument that the CSR's
prohibition of marijuana distribution violated his First
Amendment rights. The court held
that "Meyers' challenge fails for the same reasons as the
respondents challenge in Smith
failed, i.e., the right to free exercise of religion under the Free
Exercise Clause of the First
Amendment does not relieve an individual of the obligation to
comply with a valid and neutral
law of general applicability on the ground that the law
incidentally affects religious
practice." Id. at 1481. The comments of the Meyers court reflect
an assumption that the CSA is a
neutral, generally applicable law within the meaning of Smith.
The court stated, for example,
that "when, as here, the challenge is to a valid neutral law of
general applicability, the law
need not be justified by a compelling governmental interest."
Id.,
citing Lukumi Babalu Aye, 508
U.S. at 521 (emphasis added).
Given the opinions in Smith and
Meyers, this Court believes that it has little leeway to
accept the Plaintiffs' argument
that the CSA is not a neutral, generally applicable law. However,
the Plaintiffs contend that this
case is distinguishable from Smith and Meyers. The Plaintiffs
maintain that Smith and Meyers
are distinct from the present case in that the courts in Smith and
Meyers were not considering the issue of
whether exemptions for scientific research and other
uses would render a drug law
non-neutral or not generally applicable. In Smith and Meyers, the
parties raising First Amendment
challenges to controlled substance laws were not contesting the
neutrality or general
applicability of those laws. Instead, they were claiming that otherwise-valid
laws that incidentally burden the
practice of a person's religion could violate that individual's
free exercise rights. See Smith,
494 U.S. at 878 (Observing that the plaintiffs "contend that their
religious motivation for using
peyote places them beyond the reach of a criminal law that is not
specifically directed at their
religious practice, and that is concededly constitutional as applied to
those who use the drug for other
reasons"); Meyers, 95 F.3d at 1481 (Taking note of criminal
defendant's suggestion that even a
neutral, generally applicable law must be justified by a
compelling government interest if
it imposes a burden on religious conduct.)
This Court will therefore consider
whether the CSAJs a neutral, generally applicable law
in light of the exceptions that it
provides for research and other uses. The United States Supreme
Court examined the concepts of
neutrality and general applicability in Lukumi, 508 U.S. 520. In
Lukumi, a church affiliated with the
Santeria religion challenged several ordinances that had
been enacted by the Hialeah,
Florida city council. Animal sacrifice plays a significant role in the
practice of Santeria. When the
plaintiff church announced plans to open a house of worship in
Hialeah, the city council passed
ordinances banning the ritual killing of animals but permitting
the killing of animals in many
other contexts.
The Supreme Court concluded that
Hialeah's regulatory scheme was neither neutral nor
generally applicable. The
ordinances failed the neutrality test because, taken together, they
amounted to a "religious
gerrymander." Id. at 535, quoting Walz v. Tax Comm'n of New York
City, 397 U.S. 664, 696 (1970)
(Harlan, J., concurring). The city council had essentially
1 0
prohibited the killing of animals
for religious reasons while exempting from prohibition almost
all non-religious killing. The
Hialeah ordinances were not generally applicable, because they
were underinclusive with regard to
the laws' purported goals, ultimately "pursu[ing] the city's
governmental interests only
against conduct motivated by religious belief." In reaching its
decision, the Lukumi court
provided helpful guidelines for analyzing the concepts of neutrality
and general applicability. This
Court will draw on these guidelines in assessing the Plaintiffs'
position.
I. NEUTRALITY
Under Lukumi, in order to
establish that a law is not neutral, a plaintiff must show "that
the object or purpose of [the] law
is the suppression of religion or religious conduct." Id. a t 533.
The Lukumi court explained
that "the minimum requirement of neutrality is that a law not
discriminate on its face,"
but that "[f]acial neutrality is not determinative." Id. a t 533-34.
Because "[t]he Free Exercise
Clause protects against governmental hostility which is masked, as
well as overt," courts should
look beyond the surface for indications that the purpose of a law is
to suppress religion. Id. a t 534.
The court observed that "the effect of a law in its real operation
is strong evidence of its
object." Id. at 535.
The Plaintiffs in the
present case do not appear to contend that, on its face, the CSA
targets the religious use of
drugs. Rather, the Plaintiffs seem to argue that a comparison between
the statute's treatment of secular
uses, as opposed to its treatment of religious uses, supports the
inference that the GSA's purpose
is to limit the religious use of controlled substances. The
Plaintiffs maintain that "the
CSA is not neutral as between secular and religious interests,"
because the law exempts the
secular use of controlled substances in medical, scientific,
industrial, and research settings,
but bans almost all religious uses of controlled substances. 3
The Plaintiffs' failure to take
into account the full spectrum of potential uses for drugs
undercuts their argument, however.
For example, the Plaintiffs ignore a very important category
of secular drug use- recreational
drug use. This Court imagines that there are a number of
individuals in the United States
who may wish to use a given controlled substance in a setting
that is neither scientific nor
ceremonial in a religious context. The CSA restricts the freedom of
recreational users, as well
religious users, to consume controlled substances. This Court cannot
reasonably infer from the way that
the CSA operates that the purpose of the law is to target
religious ceremonial drug use.
This case therefore presents much different circumstances from
Lukumi, where the Supreme Court found,
upon examining the operation of the challenged city
ordinances, that "[i]t is a
necessary conclusion that almost the only conduct subject to [the
ordinances] is the religious
exercise of Santeria church members." Id. at 535.
2.
GENERAL APPLICABILITY
Discussing the requirement of
general applicability, the Lukumi court observed that "[a]ll
laws are selective to some extent,
but categories of selection are of paramount concern when a
law has the incidental effect of
burdening religious practice." Id. a t 542. The "government ...
cannot in a selective manner
impose burdens only on conduct motivated by religious belief." Id.
at 543. The ordinances at issue in
Lukun2i were so deficient that the court declined to "define
'
The Plaintiffs also argue that the
CSA is not neutral between religions, because
the law provides an exemption for
the Native American Church's ceremonial use of peyote. The
Court has already addressed this
issue at length, in the context of the Plaintiffs' claims under the
Equal Protection clause and the
Establishment Clause. In its Memorandum Opinion and Order
entered February 25, 2002, the
Court found that the federal government's peyote exemption
policy does not constitute
impermissible favoritism toward the Native American Church.
12
with precision the standard used
to evaluate whether a prohibition is of general application." Id.
However, the Lukumi court made
clear that a law is not generally applicable if it was purportedly
adopted to protect certain
interests, yet "fail[s] to prohibit nonreligious conduct that endangers
these interests in a similar or
greater degree than [the banned religious conduct] does." Id.
In Lukumi, for example, the
city of Hialeah claimed that one of the goals of the contested
ordinances was to prevent cruelty
to animals. The Supreme Court noted, though, that "[m]any
types of animal deaths or kills
for nonreligious reasons are either not prohibited or approved by
express provision." Id. a t 543.
Hunting, fishing, rodent extermination, and the euthanasia of
stray animals all continued to be
legal. The Lukumi court concluded that "[d]espite the city's
proffered interest in preventing
cruelty to animals, the ordinances are drafted with care to forbid
few killings but those occasioned
by religious sacrifice." Id. The Court found that the
ordinances were similarly
underinclusive with respect to the city's claimed goal of protecting
public health.
The Third Circuit examined the
general applicability requirement in an opinion cited by
both the Plaintiffs and the
Government. In Fraternal Order of Police v. City of Newark, 170
F.3d 359 (1999), a Newark Police
Department policy required police officers to shave their
beards. The police department
allowed exceptions to the shaving policy for officers who had
medical reasons for not shaving
and for undercover officers. Two police officers challenged the
departmental policy on the ground
that they are Sunni Muslims and their religion prohibits them
from shaving.
The Third Circuit found that while
the exemption for undercover officers did not
diminish the general applicability
of the beard policy, the medical exemption did. The
1 3
Department had adopted the policy
to promote a uniform appearance among its officers. The
Third Circuit pointed out that
"the undercover exception ... does not undermine the
Department's interest in
uniformity because undercover officers `obviously are not held out to
the public as law enforcement
person[nel]."' Id. at 366 (citing reply brief.) In contrast, "the
medical exemption raises concern
because it indicates that the Department has made a value
judgment that secular (i.e.,
medical) motivations for wearing a beard are important enough to
overcome its general interest in
uniformity but that religious motivations are not." Id. at 366.
Like the Third Circuit, the
District of Nebraska found that a governmental policy failed
to meet the general applicability
standard elucidated in Lukumi. Rader v. Johnston, 924 F.Supp.
1540 (D. Neb. 1996) concerned a
University of Nebraska-Keamey rule requiring freshmen to
live in dormitories on campus.
University officials represented that the goals of the policy were
to promote diversity and
tolerance, encourage academic achievement, and, for financial reasons,
to make sure that there were
enough students living on campus to fill the dorms. The plaintiff, a
devout Christian, requested an
exemption from the on-campus housing policy, so that he could
live instead in an off-campus
Christian housing facility. The plaintiff maintained that the
lifestyle in the dorms, where many
students drank alcohol and had parties, would interfere with
the practice of his religion. When
the university denied the plaintiff's application for an
exemption, he brought a claim
under the Free Exercise clause.
In reaching its decision, the
District of Nebraska took note of the many categories of
freshmen exempt from the housing
rule. The policy enumerated exceptions for married students,
students with parents living
nearhy, part-time students, and students who were older than
nineteen at the start of the
school year. In addition, university officials granted a significant
14
number of exceptions to students
applying for waivers based on a variety of special
circumstances. Evidence showed
that in practice, the university applied the housing rule to only
1,600 of 2,500 freshmen. The
District of Nebraska cited the fact that "[o]ver one third of the
freshman students . . . are not
required to comply with the parietal rule" in determining that "the
parietal rule cannot be viewed as
generally applicable to all freshman students." Id. at 1553.
The court stressed that
"although exceptions are granted by the defendants for a variety of
nonreligious
reasons, they are not granted for
religious reasons." Id. at 1553.
In this case, the Court will
follow the approach outlined in Lukumi. In order to evaluate
the general applicability of the
CSA, this Court will inquire into whether the statute is
substantially underinclusive as to
its purported aims- whether the CSA "fail[s] to prohibit
nonreligious conduct that
endangers" governmental interests "in a similar or greater degree
than" the religious
ceremonial consumption of controlled substances does. In their
memorandum in support of the
motion for preliminary injunction, the Plaintiffs emphasize that
through the CSA's registration
scheme for drugs used in medical, scientific, industrial, and
research settings, huge amounts of
controlled substances are produced and distributed.
However, this Court believes, as
does the Government, that the Lukumi framework requires the
Plaintiffs to demonstrate more
than that the CSA includes significant exceptions for certain
secular uses of controlled
substances. Rather, the Plaintiffs must show that the research and
scientific exceptions to the CSA
jeopardize the same interests that the government uses to justify
the restrictions on religious
conduct imposed by the CSA.
The Court concludes in this case.
that the secular exceptions specified in the CSA do not
implicate the purpose of the law.
The Government has suggested that in enacting the CSA,
1 5
"Congress's primary target
was a secular one: the recreational use of controlled substances."
Reply at 37, citing H.R. Rep. No.
91-1444, 91st Cong., 2d Sess., reprinted in 1970 U.S.C.C.A.N.
4566. This Court agrees that the
CSA reflects Congressional concern about the risks to public
health and safety associated using
controlled substances. Included among the findings at the
beginning of the CSA is the
statement that "[t]he illegal importation, manufacture, distribution,
and possession and improper use of
controlled substances have a substantial and detrimental
effect on the health and general
welfare of the American people." 21 U.S.C. § 801(2).
As the Third Circuit explained in
the City of Newark case, "the Free Exercise Clause does
not require the government to
apply its laws to activities that it does not have an interest in
preventing." 170 F.2d at 366.
Here, allowing certain uses of drugs in controlled scientific,
research, and medical environments
does not run counter to the government's interest in
promoting public health. The
unregulated consumption of drugs in ceremonial settings may
present risks of adverse health
effects and illegal diversion in a way that the research exceptions
do not. See, e.g., Hrg. Tr. at 864,
Testimony of Sander Genser (Discussing why controlled
research settings ensure relative
safety.) This Court concludes that the CSA meets the standard
for general applicability, because
the law generally applies to the uses of controlled substances
that endanger public health.
While the Plaintiffs' initial
argument in favor of their free exercise claim focused on the
research exemptions set forth in
the CSA, the Plaintiffs' reply brief and trial brief present a
some plants growing within the
United States contain DMT,
"the government has singled
out hoasca for suppression and has singled out the adherents of the
UDV for threat of criminal prosecution."
Reply, at 34. According to the Plaintiffs, "the
different contention- that altho
1 6
Department of Justice, DEA and
Customs have made the administrative decision to remain aloof
from any thorny decisions
regarding the possession and abuse of DMT-containing plants that
grow in this country and has
chosen, instead, to limit its enforcement efforts to religious use of
DMT-containing plants."
Supplemental Trial Memorandum, at 5. The Plaintiffs seems to draw
on an Equal Protection theory,
arguing that even if the CSA is impartial, the Government is
applying it in a way that
discriminates against the Plaintiffs on the basis of religion. (See, e.g.,
Massachusetts Board of Retirement
v. Murgia, 427
U.S. 307, 312 (1976), stating that "equal
protection analysis requires
strict scrutiny of a legislative classification ... when the
classification impermissibly
interferes with the exercise of a fundamental right or operates to the
peculiar disadvantage of a suspect
class.")
During the hearing, the Plaintiffs
presented evidence showing that certain plants growing
in this country, including
phalaris grass, contain DMT. The Plaintiffs' evidence included a
document showing that the United
States Department of Agriculture even recommends using one
kind of phalaris for erosion
control. The Plaintiffs appear to argue that if people are allowed to
grow phalaris grass for
nonreligious reasons, while the UDV's supply of hoasca is confiscated,
this Court should conclude that
the federal government must be discriminating against the
Plaintiffs on the basis of
religion. The Court does not believe that the evidence about phalaris
would necessarily lead to that
conclusion. Individuals with phalaris grass in their lawns may
possess DMT in some sense.
However, if there are no indications
that the people with phalaris
lawns are consuming the
grass, law enforcement might legitimately choose not to prosecute, for
reasons other than that the grass
is being used for the secular purpose of having a lawn. Federal
law enforcement entities might
prioritize focusing on the UDV's hoasca use not because the use
17
is religious, but instead because
UDV members make much more extensive use of hoasca by
personally ingesting it than a
person with a phalaris lawn makes of the grass. Before their tea
was confiscated, UDV officials
regularly distributed the tea to church members for consumption.
Some evidence presented at the
hearing suggested that non-religious consumption of
plants containing DMT does take
place in the United States. This evidence included materials
taken from the intenet-
advertisements for plants containing DMT and testimonials from
people claiming to have used teas
similar to hoasca. While such evidence might eventually
contribute to support an argument
that the UDV was selectively prosecuted on the basis of
religion, this evidence, standing
alone, is insufficient to create an inference that selective
prosecution in fact occurred. As
the Government observes, the use of DMT reported on the
internet differs in scale from the
UDV's use, and the authorities may have chosen to target the
UDV for reasons other than
religion. The Government notes that "[t]he possibility that an
internet account of a single dose
may be accurate and could be reliably traced to the perpetrator
cannot compare to the actual
interception of 3,000 doses of an illegal substance being imported
for distribution." Trial
Memorandum, at 13.
In its February 25, 2002
Memorandum Opinion and Order addressing the Plaintiffs'
Equal Protection claim, the Court
noted that Plaintiffs' counsel have represented that following
discovery, the Plaintiffs may
pursue a claim that the government has impermissibly targeted the
UDV in particular for prosecution.
By finding that the Plaintiffs' evidence is not sufficient at
this time to support a preliminary
injunction based on a selective prosecution theory, the Court
does not intend to foreclose
further efforts by the Plaintiffs to develop that theory.
18
B.
PLAINTIFFS' ARGUMENT THAT THE CSA DOES NOT EXTEND TO
HOASCA
This Court has thus far assumed,
in considering the Plaintiffs' claims under the United
States Constitution, that the
CSR's ban on DMT applies to hoasca. The Plaintiffs argue,
however, that "[e]ven if the
Defendants were not violating Plaintiffs' rights under RFRA and the
Free Exercise and the Equal
Protection clauses, their actions are nonetheless illegal because
hoasca is not a controlled substance" under the CSA. The
Plaintiffs acknowledge that "[o]ne of
the plants that comprise Hoasca,
psychotria viridis, is naturally composed, in very small part, of
DMT." The Plaintiffs also
recognize that DNIT is scheduled as a controlled substance under the
CSA. They maintain, though, that
the CSA prohibits only synthetic DMT, and not the DMT
occurring naturally in plants. The
Plaintiffs premise this argument on the proposition that the
language of the CSA is ambiguous
as applied to DMT in a natural state.
As the United States Supreme Court
has made clear, "[t]he starting point for ...
interpretation of a statute is
always its language." Community for Creative Non-Violence v.
Reid, 490 U.S. 730, 739 (1989). Thus this Court must first look to
the language of the CSA in
order to evaluate the Plaintiffs'
arguments. The CSA divides controlled substances into five
schedules, classified according to
Congressional determinations regarding each drug's potential
for abuse and each drug's accepted
medical uses. The CSA places a number of hallucinogenic
drugs into Schedule 1, the most
strictly regulated category. Schedule I(c) provides that "[u]nless
specifically excepted or unless
listed in another schedule, any material, compound, mixture, or
A drug's placement in Schedule I
indicates that the substance "has a high
potential for abuse," that it
"has no currently accepted medical use in treatment in the United
States," and that
"[t]here is a lack of accepted safety for use of the drug ... under
medical
supervision." 21 U.S.C. §
812(b)(1).
1 9
preparation, which contains any
quantity of the following hallucinogenic substances" falls within
the Schedule I category. Among the
hallucinogens listed in Schedule I(c) is dimethyltryptamine
(DMT).
This Court agrees with the
Government that the language of the CSA clearly covers
hoasca. After all, the Plaintiffs
do not dispute that one of the plant components of hoasca
contains DMT. The Court is
constrained to conclude that hoasca tea thus constitutes a "material,
compound, mixture, or preparation
which contains any quantity" of DMT, within the plain
meaning of the statute.
However, the Plaintiffs offer a
number of theories of statutory construction to support
their argument that the CSA should
not be i nterpreted to apply to plants that contain DMT and to
substances derived from those
plants. For example, the Plaintiffs stress that Congress is
presumed to avoid superfluous
drafting. See, e.g., Gustafson v. Alloyd Co., 513 U.S. 561, 574
(1995). The Plaintiffs observe
that the CSA contains a number of instances where Congress
expressly banned both a given
chemical and the plant in which that chemical is naturally found.
Based on this, the Plaintiffs
declare that because Congress listed only a chemical substance,
DMT, it did not intend that plants
containing that substance would also be prohibited.
Otherwise, Congress would have
engaged in superfluous drafting elsewhere in the CSA by, for
example, explicitly scheduling
both peyote (a plant) and mescaline (a chemical substance.)
The Plaintiffs have also drawn on
the following principles to argue that the CSA should
not be interpreted to ban hoasca:
1) the canon that courts should not construe statutory
provisions to contradict other
parts of a statutory scheme, see e.g., United Sav. Ass'n v. Timbers
of Inwood Forest Assocs., 484 U.S.
365, 371 (1988);
2) the principle of "Evpressio unius est
20
exclusio alterius", see e.g., Leatherman v. Tarrant
County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168 (1993); 3) the
rule of lenity, see e.g. United States v.
Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22 (1952); and 4) the
principle that courts
should construe statutes to avoid
constitutional problems, see e.g., NLRB v. Catholic Bishop of
Chicago, 440 U.S. 490, 500 (1979).
The Plaintiffs have presented
interesting arguments under all of these theories, and their
arguments may well have been
persuasive if the statute at issue were any less clear. As the
Government points out, however,
most of the principles discussed by the Plaintiffs become
relevant only if the statutory
language is ambiguous.
The Supreme Court has noted that:
In any event, canons of
construction are no more than rules of thumb that help
courts determine the meaning of
legislation, and in interpreting a statute a court
should always turn first to one,
cardinal canon before all others. We have stated
time and again that courts must
presume that a legislature says in a statute what it
means and means in a statute what
it says there. See, e.g., United States v. Ron
Pair Enterprises, Inc., 489 U.S. 235, 241-242, 109 S.Ct.
1026, 1030-1031, 103
L.Ed.2d 290 (1989); United
States v. Goldenberg, 168 U.S. 95, 102-103, 18 S.Ct.
3, 4, 42 L.Ed. 394 (1897); Oneale
v. Thornton, 6 Cranch 53, 68, 3 L.Ed. 150
(1810). When the words of a
statute are unambiguous, then, this first canon is also
the last: "judicial inquiry
is complete." Rubin v. United States, 449 U.S. 424, 430,
101 S.Ct. 698, 701, 66 L.Ed.2d 633
(1981); see also Ron Pair Enterprises, supra,
489 U.S., at 241, 109 S.Ct., at
1030.
Connecticut Nat'l Bank v. Germain,
503 U.S. 249,
253-54 (1992). More recently, the Supreme
Court has explained that a court's
"first step `is to determine whether the language at issue has a
plain and unambiguous meaning with
regard to the particular dispute in the case,"' and that
"[t]he inquiry ceases `if the
statutory language is unambiguous and the statutory scheme is
coherent and consistent."' Barnhart
v. Sigmon Coal Company, Inc., 534 U.S. 438 (2002),
quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 340 (1997).
Granted, a court should not read a
statute literally if a literal construction would "lead to
2 1
irreconcilable inconsistencies or
clearly absurd results that Congress could not have intended."
Resolution Trust Corp. v. Westgate
Partners, Ltd., 937
F.2d 526, 531 (10th Cir. 1991).
However, this Court does not
believe that interpreting the CSA to prohibit hoasca use results in
absurdity or creates an
internally-contradictory statute. The Plaintiffs observe that many plants
and animals, including humans,
contain DMT; and the Plaintiffs imply that because the CSA
cannot be read to ban humans, that
the statute must apply only to synthetic DMT. Simply
because banning humans would be
absurd does not mean that banning any non-synthetic DMT
found elsewhere would be absurd.
Courts confronted with potentially absurd statutory
applications are to consider
"alternative interpretations consistent with the legislative
purpose."
Oxy USA, Inc. v. Babbitt, 268 F.3d 1001, 1012 (10th Cir.
2001), quoting Grin v. Oceanic
Contractors, Inc., 458 U.S. 564, 575 (1982).
In this case, interpreting the CSA to apply to the
ingestion of a tea containing a
hallucinogenic chemical seems reasonable, even if interpreting the
CSA to apply to the human body
does not.
In addition, the Plaintiffs have
failed to establish that interpreting the CSA to apply to
hoasca would contradict other
provisions of the statute. The Plaintiffs have not pointed to any
contradictions that directly
concern the CSR's treatment of DMT and substances containing
DMT. It is not as if the statute
places DMT in one schedule and products made with DMT in
another schedule, for example. Rather,
the Plaintiffs' arguments rely on an analysis of the
CSR's approach to other drugs.
The Plaintiffs argue that
construing the CSR's prohibition on DMT to apply to hoasca
creates a contradiction in the
federal peyote exemption scheme. The CSA schedules both
peyote, a cactus button, and
mescaline, the hallucinogenic chemical found in peyote, but the
22
federal regulatory exemption
refers only to peyote, and not to mescaline. The Plaintiffs maintain
that "[i]f the listing of a
substance encompasses all plants that contain the substance, then the
exemption for peyote alone is
meaningless: the [Native American Church] would violate the
CSA at each of its ceremonies by
using a plant that contains `mescaline."' Memorandum in
Support of Motion for Preliminary
Injunction, at 33. The Government has effectively countered
the Plaintiffs' argument by
pointing out that a member of the Native American Church would not
violate the CSA by using peyote,
even if peyote contains mescaline, because the federal
regulatory exemption explicitly
permits church members to use peyote.
Because the plain language of the
CSA clearly indicates that the statute's prohibition on
DMT extends to hoasca, and because
the application of the statute does not result in absurdity or
in internal contradictions, this
Court concludes that hoasca is an illegal substance under the CSA.
C.
PLAINTIFFS' CLAIMS UNDER
INTERNATIONAL LAW OF COMITY
This Court's conclusion that the
language of the CSA is unambiguous, with respect to the
statute's application to the use
of hoasca by the UDV, resolves another of the Plaintiffs' claims.
The Plaintiffs contend that the
international law doctrine of comity suggests that the government
should not interfere with the
UDV's religious consumption of hoasca. Comity is "the
recognition which one nation
allows within its territory to the legislative, executive, or judicial
acts of another nation, having due
regard both to international duty and convenience, and to the
rights of its own citizens, or of
other persons who are under the protection of its laws." In the
Matter of The Colorado Corp. v. Lam, 531 F.2d 463, 468 (10th Cir.
1976), quoting Hilton v.
Guyot, 159 U.S. 113 (1895). The
United States Supreme Court has observed that "[c]omity
refers to the spirit of
cooperation in which a domestic tribunal approaches the resolution of cases
23
touching the laws and interests of
other sovereign states." Societe Nationale Industrielle
Aerospatiale v. United States
District Court for the Southern District of Iowa, 482 U.S. 522,543
n. 27 (1987).
The Plaintiffs stress that courts
have recognized a "canon of statutory construction that
requires courts, whenever
possible, to construe federal statutes to ensure their application will
not violate international
law." Commodity Futures Trading Commission v. Nahas, 738 F.2d 487,
493 (D.C. Cir. 1984), citing Murray
v. The Schooner Betsy, 6 U.S. (2 Cranch) 64, 118, 2 L.Ed.
200 (1804) ("[A]n act of
congress ought never to be construed to violate the law of nations, if
any other possible construction
remains.") See also, e.g., Grunfelder v. Heckler, 748 F.2d 503,
509 (9th Cir. 1984) ("Absent
an expression of congressional intent to the contrary,
considerations of courtesy and
mutuality require our courts. to construe domestic legislation in a
way that minimizes interference
with the purpose or effect of foreign law.")
The Plaintiffs argue that allowing
the Government to prohibit the UDV's ceremonial use
of hoasca would conflict with
Brazilian law and with a number of international treaties.' As Dr.
Brito testified during the
evidentiary hearing, Brazil permits members of the UDV to consume
hoasca for religious reasons. The
Plaintiffs also emphasize that international agreements to
which the United States is a
party, such as the United Nations International Covenant on Civil
and Political Rights, pledge
support for freedom of religious beliefs and practices. Moreover,
'
The Plaintiffs do not appear to
argue that any treaty explicitly or directly requires
that the United States refrain
from prohibiting the religious use of hoasca. Rather, the Plaintiffs
seem to contend that the
Government's interpretation of the CSA to apply even to the
sacramental consumption of hoasca
is inconsistent with general principles of international
religious freedom that are reflected
in treaties to which the United States is a signatory.
Therefore, this Court has not
conducted an inquiry into the issue of whether, for example, a laterenacted
treaty would trump the ban on DMT
contained in the CSA.
24
Plaintiffs direct attention to the
International Religious Freedom Act, 22 U.S.C. § 6401-6481,
enacted in 1998, which, Plaintiffs
say, further reflects Congressional commitment to the
promotion of religious freedom
throughout the world. 6 According to the Plaintiffs, permitting
the ceremonial use of hoasca would
"not only show comity to, and enhance our relations with,
[Brazil], but will also
demonstrate our government's willingness to give appropriate respect to a
multi-cultural international
community generally." Memorandum in Support of Motion for
Preliminary Injunction, at 44.
Even assuming that principles of
international law would favor construing an ambiguous
controlled substances statute to
allow the religious use of hoasca, this Court believes that the
CSA does not leave room for the
interpretation the Plaintiffs request. As the United States Court
of Appeals for the District of
Columbia Circuit eloquently stated in Nahas, "[f]ederal courts must
give effect to a valid,
unambiguous congressional mandate, even if such effect would conflict
with another nation's laws or
violate international law." 738 F.2d at 495. The sources cited by
the Plaintiffs for the proposition
that a domestic law should not be interpreted to conflict with
international law, such as the
Murray and Grunfelder cases, 6 U.S. 64 and 748 F.2d at 509,
assume that the domestic law lends
itself to more than one interpretation. In this case, the Court
has found that, under the plain
language of the CSA, the statute's ban on DMT clearly extends to
hoasca. Comity is not an
"absolute obligation," Colorado Corp., 531 F.2d at 468, quoting
Hilton, 159 U.S., and this Court cannot
rely on the comity principle to disregard a clear
statement from Congress on a
matter of domestic law.
However, as the Plaintiffs
acknowledge, Congress passed this statute to address
threats to religious freedom
occurring in countries other than the United States.
25
D.
RELIGIOUS FREEDOM RESTORATION ACT
CLAIM
In Section III(A) above, this
Court evaluated the Plaintiffs' Free Exercise claim in light
of the Supreme Court's holding in Sinith
that "the right to free exercise of religion does not
relieve an individual of the
obligation to comply with a valid and neutral law of general
applicability," even if that
law incidentally burdens the practice of religion.
United States v.
Meyers, 95 F.3d 1475, 1480 (10th Cir. 1996),
citing Smith, 494 U.S. 872. Because this Court
concluded that the CSA was neutral
and generally applicable, the Court found that the Plaintiffs
were not entitled to a preliminary
injunction on their First Amendment claim.
However, the Plaintiffs also raise
a religious freedom claim that has a statutory, rather
than Constitutional, basis.
Following the Supreme Court's decision in Smith, Congress enacted
the Religious Freedom Restoration
Act (RFRA), 42 U.S.C..§ 2000bb. In the "Congressional
findings and declaration of
purposes" section of the statute, Congress criticized the Supreme
Court's holding in Smith and
stated that RFRA was intended "to restore the compelling interest
test as set forth in Sherbert
v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205
(1972)." RFRA provides that:
Government may substantially
burden a person's exercise of religion only
if it demonstrates that
application of the burden to the person-
(1) is in furtherance of a
compelling governmental interest; and
(2) is the least restrictive means
of furthering that compelling
governmental interest.
42 U.S.C. § 2000bb-1(b).7
In order to state a prima facie
claim under RFRA, a plaintiff must show "(1) a
substantial burden imposed, by the
federal government on a (2) sincere (3) exercise of religion."
Kikumura v. Hurley, 242 F.3d 950, 960 (10th Cir.
2001). If the plainti
requirements by a preponderance of
the evidence, the burden shifts to the government to
demonstrate that the challenged
regulation furthers a compelling state interest in the least
restrictive manner." Meyers,
95 F.3d at 1482. In this case, the Government did not dispute, for
purposes of the Plaintiffs' motion
for preliminary injunction, that the Plaintiffs had established a
prima facie case under RFRA. Stated
differently, the government conceded, at this point in the
course of the case, that the CSA
imposes a substantial burden on Plaintiffs' sincere exercise of
religion. Hence, the hearing began
with the Government shoulde
upon it by Congress in passing
RFRA.
1.
COMPELLING GOVERNMENTAL INTERESTS
The Government asserts that it
"has at least three compelling interests in prohibiting the
importation and use of
DMT-containing substances, all of which are implicated by the UDV's
religious use of ayahuasca."
Response, at 15. The Government has alleged a compelling interest
in 1) adhering to the 1971
Convention on psychotropic substances; 2) preventing the health and
safety risks posed by hoasca; and
3) preventing the diversion of hoasca to non-religious use.
Before turning to a specific
analysis of whether the Government has met its burden of
meets "the threshold
g the weighty load thrust
In City of Boerne v. Flores, 521
U.S. 507 (1997), the Supreme Court declared
RFRA unconstitutional as applied
to state governments. However, the Tenth Circuit has held
that "RFRA as applied to the
federal government is severable from the portion of RFRA declared
unconstitutional in Flores, and
independently remains applicable to federal officials." 242 F.3d
950, 960 (10th Cir. 2001).
27
establishing a compelling
interest, this Court notes that there are two significant distinctions
between the present case and many
other cases in which individuals have challenged drug laws
on religious freedom grounds.
First, as observed above, the Government concedes for purposes
of this motion that the UDV is a
religion, that the Plaintiffs sincerely believe in the tenets of the
UDV religion, and that the
application of the CSA to the UDV's ceremonial use of hoasca
substantially burdens the
Plaintiffs' practice of their religion. In contrast, courts in other RFRA
cases concerning drugs have
sometimes found that the plaintiff's religious beliefs do not
constitute religious beliefs, or
that the plaintiff does not sincerely hold the beliefs, or that the
government's action does not
actually substantially burden the plaintiff's religious practice.
United States v. Meyers, 95 F.3d 1475 (10th Cir. 1996)
involved a criminal defendant
who moved under RFRA to dismiss
the marijuana charges brought against him. Mr. Meyers
"testified that he is the
founder and Reverend of the Church of Marijuana and that it is his
sincere belief that his religion
commands him to use, possess, grow and distribute marijuana for
the good of mankind and the planet
earth." Id. a t 1479. The Tenth Circuit considered whether
Mr. Meyers's convictions were
"religious beliefs," or whether the convictions instead amounted
to "a philosophy or way of
life." Id. a t 1482. The Tenth Circuit adopted the district court's
finding that, in light of the
secular nature of Mr. Meyers's views on the medical, therapeutic, and
social benefits of marijuana.
"Meyers' beliefs more accurately espouse a philosophy and/or way
of life rather than a `religion."'
Id. at 1484.
In United States v. Bauer, 84 F.3d
1549, a Ninth Circuit case, three criminal defendants
sought to rely on RFRA in
defending against a number of marijuana charges. The defendants
were adherents to the Rastafarian
religion, in which marijuana is a sacrament. The Bauer court
28
emphasized that the availability
of RFRA as a defense to the various marijuana charges hinged
on whether each particular
criminal provision burdened the practice of Rastafarianism. The
Ninth Circuit found that the
district court had erred in prohibiting the defendants from using
RFRA as a defense to simple
possession charges. Id. a t 1559. However, "[a]s to the counts
relating to conspiracy to
distribute, possession with intent to distribute, and money laundering,
the religious freedom of the
defendants was not invaded" because "[n]othing before [the court]
suggests that Rastafarianism would
require this conduct." Id. In a more recent Ninth Circuit
case, the court cited Bauer i
n holding that a criminal defendant could not draw on RFRA to
defend against charges brought
under a Guam statute prohibiting the importation of controlled
substances. Guam v. Guerreo,
290 F.3d 1210 (9th Cir. 2002). The Guerrero court
noted that it
was "satisfied that
Rastafarianism does not require importation of a controlled
substance." Id. at
1223.
There is a second major
distinction between the present case and the cases involving
claims that the principles of
religious freedom reflected in the Free Exercise Clause and RFRA
should be interpreted as
permitting the sacramental use of marijuana. This distinction stems
from the significant differences
in the characteristics of the drugs at issue. Affirming a trial
court's denial of a criminal
defendants' request to rely in RFRA as a defense to marijuana
charges, the Eighth Circuit stated
"that the government has a compelling state interest in
controlling the use of
marijuana." United States v. Brown, 72 F.3d 134 (8th Cir. 1995)
(table).
As support for this observation,
the Brown court cited a number of First Amendment opinions
which had emphasized problems
associated with marijuana in particular. See, e.g., United States
v. Greene, 892 F.2d 453, 456-57 (6th Cir.
1989) ("Every federal court that has considered this
29
issue has accepted Congress'
determination that marijuana poses a real threat to individual health
and social welfare and had upheld
criminal penalties for possession and distribution even where
such penalties may infringe to
some extent on the free exercise of religion."); United States v.
Middleton, 690 F.2d 820, 825 (11th Cir.
1982), quoting Leary v. United States, 383 F.2d 851,
860-61 (5th Cir. 1967) ("It
would be difficult to imagine the harm which would result if the
criminal statutes against
marihuana were nullified as to those who claim the right to possess and
traffic in this drug for religious
purposes.")
The parties in this case have
presented a great deal of evidence on the issue of whether
the United States has a compelling
interest in prohibiting the UDV's religious use of hoasca. Of
course, regardless of what this
evidence might suggest regarding the dangers associated with
hoasca, the Court cannot ignore
that the legislative branch of the government elected to place
materials containing DMT in
Schedule I of the CSA, reflecting findings that substances
containing DMT have "a high
potential for abuse," and "no currently accepted medical use in
treatment in the United
States," and that "[t]here is a lack of accepted safety for
use of [DMT]
under medical supervision."
21 U.S.C. § 812(b)(1). Discussing another statute concerning
controlled substances, the Supreme
Court once noted, "[w]hen Congress undertakes to act in
areas fraught with medical and
scientific uncertainties, legislative options must be especially
broad and courts should be
cautious not to rewrite legislation, even assuming, arguendo, that
judges with more exposure to the
problem might make wiser choices." Marshall v. United
States, 414 U.S. 417, 427 (1974). More recently, the
Supreme Court's opinion in United States
v. Oakland Cannabis Buyers'
Cooperative, 532 U.S. 483, 493 (2001) suggested that courts
should accord a great deal of
deference to Congress's classification scheme in the CSA.
30
The Government argues that
"Congress has made an affirmative statutory declaration that
materials containing DMT. . . are
unsafe." Response, at 27-28. If this Court were employing a
more relaxed standard to review
the application of the CSA to the UDV's use of hoasca, it would
be very reluctant to question this
Congressional finding concerning DMT. However, the
Plaintiffs are relying on RFRA, a
more recent legislative enactment by Congress, to challenge
the extension of the CSA's ban on
DMT to the UDV's religious consumption of hoasca. Under
RFRA, Congress mandated that a
court may not limit its inquiry to general observations about
the operation of a statute.
Rather, "a court is to consider whether the `application of the burden'
to the claimant `is in furtherance
of a compelling governmental interest' and `is the least
restrictive means of furthering
that compelling governmental interest.' 42 U.S.C. § 2000bb-1(b)
(emphasis added)." Kikunwra, 242 F.3d at 962. In Kikumura, a case in which a federal prisoner
was challenging a decision made by
prison officials, the Tenth Circuit Court of Appeals noted
that "under RFRA, a court
does not consider the prison regulation in its general application, but
rather considers whether there is a compelling government reason, advanced in the
least
restrictive means, to apply the
prison regulation to the individual claimant." Id.
RFRA requires that the Government
"demonstrate[]" its compelling interest and its use of
the least restrictive means to
accomplish that interest. In enacting RFRA, Congress explicitly
stated that "the term
`demonstrates' means meets the burdens of going forward with the evidence
and of persuasion." 42 U.S.C.
§ 2000bb-2. This Court concludes that the Government has fallen
short of meeting its difficult
burdens, which Congress requires. The Government has not shown
that applying the CSA's
prohibition on DMT to the UDV's use of hoasca furthers a compelling
3 1
interests This Court cannot find,
based on the evidence presented by the parties, that the
Government has proven that hoasca
poses a serious health risk to the members of the UDV who
drink the tea in a ceremonial
setting. Further, the Government has not shown that permitting
members of the UDV to consume
hoasca would lead to significant diversion of the substance to
non-religious use. The Court bases
its determinations on the following facts.
a.
HEALTH RISKS TO MEMBERS OF THE UDV
The consumption of hoasca tea
plays a central role in the practice of the UDV religion.
Decl. of Jeffrey Bronfman, Exh. A.
to Pltf. Mot. for Prelim. Inj., at 13. Hoacsa is a sacrament in
the UDV. Church doctrine instructs
that members can fully perceive and understand God only
by drinking the tea. Pltf. Exh.
21, Decl. of David Lenderts, at 4. UDV members drink hoasca
only during regular religious
services, held on the first and third Saturdays of every month and
on ten annual holidays. Decl. of
Bronfman, at 8. A church leader called a "directing mestre"
generally conducts the service.
Id. a t 9. Ceremonies start at 8 p.m. and last for about four hours.
Id. at 8-10. The mestre begins the
service by distributing measured glasses of tea to each
participant. Id. a t 10.
Activities during UDV services include the recitation of church law by
selected congregants, the singing
of sacred chants by the mestre, question-and-answer exchanges
between the mestre and
participants, and a period of religious teaching led by the mestre. Id. a t
The Tenth Circuit has very
recently observed that "[w]hether something qualifies
as a compelling interest is a
question of law." United States v. Hardman, No. 99-4210, 2002 WL
1790584, at *8 (10th Cir. Aug. 5,
2002), citing Citizens Concerned About Our Children v.
School Bd., 193 F.3d 1285, 1292 (1 lth Cir.
1999); Concrete Works of Colo.,
Inc. v. City and
County of Denver, 36 F.3d 1513, 1522 (10th Cir. 1994).
However, in this case, there does not
seem to be a dispute between the
parties over whether, in the abstract, the federal government
has a compelling interest in
protecting the health and safety of people in the United States.
Rather, the parties have focused
their arguments on the issue of whether the Government has met
its very heavy burden of showing
that applying the CSA to the UDV's consumption of hoasca
furthers the Government's stated interests.
32
10.
Hoasca is brewed from two plants
indigenous to the Amazon River Basin-
Banisteriopsis caapi and Psychotria viridis. Pltf.
Exh. 11, Decl. of Charles Grob, at 7.
Psychotria contains dimethyltryptamine (DMT),
a hallucinogenic chemical. Id. By itself,
psychotria does not trigger an altered state
of consciousness when taken orally, because
monoamine oxidase (MAO) enzymes in
the digestive system inactivate the DMT psychotria
contains. Id. However, banisteriopsis
contains harmala alkaloids, known as beta-carbolines,
that inhibit MAO's and prevent the
inactivation of DMT. Id.; Deft. Exh. ZZ, Rpt. of Sander
Genser, at 6. Ingesting the
combination of psychotria and banisteriopsis allows DMT to reach
levels in the brain sufficient to
produce a significantly altered state of consciousness. Deft. Exh.
ZZ, Rpt. of Genser, at 6.
Scientists have devoted little
research to the physical and psychological effects of
ceremonial hoasca consumption. Id.
The lack of knowledge about hoasca, relative to many
other substances, forms the core
of the dispute between the parties in this case. The Plaintiffs'
experts and the Government's
experts have offered differing interpretations of preliminary data,
conflicting views on the value of
comparisons between hoasca and other hallucinogenic drugs,
and contrasting evaluations of
whether certain findings signify risks associated with hoasca use.
Ultimately, the Plaintiffs contend
that evidence does not exist, to a reasonable degree of
scientific certainty, to conclude
that the UDV's religious use of hoasca carries any significant
health risk. See, e.g., Hrg. Tr. at
207-08, testimony of Grob. The Government, in contrast,
maintains that existing evidence
suggests that the ingestion of hoasca poses substantial health
concerns. See, e.g., Deft. Exh.
ZZ, Rpt. of Genser, at 5.
3 3
During the evidentiary hearing,
the Plaintiffs presented the testimony of Dr. Charles
Grob, Professor of Psychiatry at
the University of California, Los Angeles. In 1993, Dr. Grob
led a team of researchers in
conducting a study of the effects of hoasca use on UDV members in
Brazil. The study compared fifteen
long-term members of the UDV, who had drunk hoasca for
several years, with fifteen
control subjects who had never used hoasca. Pltf. Exh. 11, Decl. of
Grob, at 9-10. The researchers
administered personality tests, psychiatric interviews,
neuropsychological tests, and
physical examinations to all of the subjects in the study. In
addition, the subjects in the
experiment group completed a hallucinogen rating scale
questionnaire after they had
participated in an hoasca ceremony. Researchers also conducted life
story interviews with the members
of the experimental group. Id.
The investigators reported their
findings in a number of articles published in scientific
journals. While acknowledging that
the study was only preliminary, the researchers' overall
assessment of the safety of hoasca
use in the UDV was positive. Discussing the study, Dr. Grob
stated that, despite its
limitations, "our investigation did identify that in a group of randomly
collected male subjects who had
consumed ayahuasca for many years, entirely within the context
of a very tightly organized
syncretic church, there had been no injurious effects caused by their
use of ayahuasca. On the contrary,
our research team was consistently impressed with the very
high functional status of the
ayahuasca subjects." Pltf. Exh. 12, 2nd Decl. of Grob, at l. Of
particular interest to the
researchers was that in the life story interviews, many of the
experimental subjects reported
that they had engaged in self-destructive behavior before joining
the UDV and that their experiences
in the UDV had allowed them to lead responsible,
meaningful lives. Pltf. Exh. 11,
Decl. of Grob, at 12-13.
34
The Government has criticized the
Plaintiffs' reliance on the 1993 hoasca study to show
the safety of hoasca use. From a
methodological standpoint, the Government's experts maintain,
the hoasca study has many
limitations. For example, the study employed a small sample size,
the study included only male
subjects, and the study provided no baseline data that researchers
could use to compare information
about subjects before and after participation in the hoasca
rituals of the UDV. Deft. Exh.
JJJ, Rpt. of Alexander Walker, at 6-8; Deft. Exh. ZZ, Rpt. of
Genser at 6: Hrg. Tr. at 867-68,
testimony of Genser; Hrg. Tr. a t 743, testimony of Lorne
Dawson.
The Government has also questioned
whether long-time members of the UDV can be
considered representative of UDV
members in general. Dr. Alexander Walker, a Professor of
Epidemiology at the Harvard School
of Public Health, has. expressed the view that selection bias
undermined the value of the
results generated through the hoasca study:
According to Dr. Grob and his
coinvestigators, UDV adherents abstain from
alcohol and other intoxicating
substances, they maintain high standards of
responsibility to family and
society, they are diligent, and they are respectful of
their church's leadership. In
selecting long-term members of the UDV as their
study group, the Hoasca Project
team necessarily included persons who were able
to conform to the church's
precepts over extended periods. There was no similar
requirement for stable, long-term,
willing church attendance in the comparison
group. By itself, this one
omission ensured that the hoasca-consuming group
would have a favorable psychological
profile.
Deft. Exh. JJJ, Rpt. of Walker at
6. Dr. Lorne Dawson, the Government's expert on religion,
testified that restricting the
sample to long-term, committed church members also creates
methodological concerns because of
problems that generally accompany the collection of
conversion accounts in the
sociology of religion. Dr. Dawson explained that:
3 5
[C]onversion accounts, for
example, almost always involve some kind of a
somewhat exaggerated statement of
what their preconversion life was like in
terms of the sinfulness, perhaps,
of their life or the ways in which they engaged in
harmful behavior or abused
substances, as in this case. There is a tendency to
exaggerate how bad one's life was
before they joined the group. Then too,
perhaps they also exaggerate how
good life is now that they have joined the group
or been involved with the group.
Hrg. tr. a t 745-46. Dr. Dawson
stated that a superior sample would include people who have
belonged to the church for a short
time and people who have left the church under a range of
circumstances, in addition to
long-time church members. Id. at 746-47.
In addition to pointing out the
methodological limitations of the 1993 hoasca study, the
Government has articulated a
number of concerns regarding the UDV's ceremonial consumption
of hoasca. Dr. Sander Genser, 9 one
of the Government's experts, stated in his report that
"existing studies have raised
flags regarding potential negative physical and psychological
effects" of hoasca. Deft.
Exh. ZZ, Rpt. of Genser, at 8. Some concerns derive from potential
dangers associated with DMT,
hoasca's main psychoactive component. For example, Dr.
Genser has cited a study in which
Dr. Rick Strassman administered intravenous DMT to test
subjects. Two subjects experienced
such a high rise in blood pressure that Dr. Strassman
determined that researchers should
not include individuals with a history of hypertension in
studies of DMT. Id. Another of the
subjects in Dr. Strassman's study suffered a recurrence of
depression. Id.
According to Dr. Genser, concerns
about the safety of hoasca stem not just from
information known about other
forms of DMT, but also from information known about other
Dr. Genser is the Chief of the
Medical Consequences Unit of the Center on AIDS
and Other Medical Consequences of
Drug Abuse at the National Institute on Drug Abuse,
National Institutes of Health.
36
types of hallucinogenic
substances. Id. Dr. Genser has listed a broad range of adverse
neuropsychological effects that
have been linked to hallucinogen use. For instance, Dr. Genser
has described some dangers
associated with lysergic acid diethylamide (LSD), another
hallucinogenic substance that
shares pharmacological properties with DMT. Id. at 8-10
Particularly in individuals with
pre-existing psychopathology, LSD may produce prolonged
psychotic reactions. Id. at 9.
Users of LSD may also be at risk for developing persisting
perpetual disorder, known as
"flashbacks," in which individuals reexperienee the effects of LSD
at times when they are not actually
under the influence of the drug. Id. at 9-10.
The Plaintiffs dispute that
evidence concerning intravenous DMT and evidence about
hallucinogens other than DMT
represent strong indications that the UDV's ceremonial hoasca
use carries significant risk. With
respect to the studies of -intravenous DMT, the Plaintiffs'
experts have emphasized that
differences in the method of the administration of DMT translate
into important differences in how
the drug is experienced. Intravenous DMT has a much more
rapid onset, and its effects are
of much shorter duration, than hoasca taken orally. Dr. David
Nichols, Professor of Medicinal
Chemistry and Molecular Pharmacology at Purdue University,
has observed that "[o]rally
ingested hoasca produces a less intense, more manageable, and
inherently psychologically safer
altered state of consciousness." Pltf. Exh. 24, Decl. of Nichols,
at 7; see also Pltf. Exh. 12, 2nd
Decl. of Grob, at 2. Further, Dr. Nichols has questioned whether
Strassman's study suggests that
even intravenous DMT causes hypertension. At the evidentiary
hearing, Dr. Nichols testified
that "if you look at the pharmacology of DMT, there aren't
serotonin site receptors in the
heart and cardiovascular system that would normally produce lifethreatening
cardiovascular changes," and
that in the case of the hypertension reported by
37
Strassman, "one could argue
that that response was related to the stress of the high dose." Hrg.
Tr. a t 1145.
Regarding the Government's
evidence about the risks presented by other hallucinogens,
such as LSD, the Plaintiffs have
noted the lack of evidence connecting hoasca use with
flashbacks. Dr. Grob has stated
that "[m]y medical colleagues in the UDV inform me that they
have never received a report of
persisting perpetual disorder ("flashbacks") induced by
ayahuasca," and that "I
have also heard of no such report from any other source." Pltf. Exh. 12,
2nd Decl. of Grob, at 3. As to
other negative neuropsychological effects identified with the use
of hallucinogenic drugs, the
Plaintiffs have pointed to distinctions between hoasca and other
hallucinogens that may reduce the
possibility that hoasca would induce adverse reactions. The
Plaintiffs note, for example, that
the duration is shorter and the intensity more mild for hoasca
experiences, as compared to some
other classic hallucinogens. Pltf. Exh. 12, 2nd Decl. of Grob,
at 3.
Further, the Plaintiffs emphasize
that the circumstances under which an individual takes a
hallucinogenic drug, the "set
and setting," are crucial in determining the kind of experience that
the individual has. See, e.g., Hrg.
Tr. at 1182-83, testimony of Nichols. Referring to the 1993
hoasca study, Dr. Grob has
commented that "[i]t was the consistent observation by members of
our research team that the UDV had
constructed a ceremonial structure for their ritual use of
hoasca that optimized safety and
minimized the likelihood of adverse consequences." Pltf. Exh.
11, Decl. of Grob, at 5. The
Plaintiffs call attention to the fact that the UDV employs a range of
measures- from screening new
church members for psychological instability to observing
members for problems during church
ceremonies- to protect the safety of individuals ingesting
3 8
hoasca. Id.
Along with evidence about DMT and
other hallucinogens in general, the Government has
presented evidence more specific
to the hoasca ingested in the UDV. Both parties have devoted
a substantial amount of attention
to a potential danger acknowledged even by the Plaintiffs
adverse drug interactions. This
danger stems from the presence of the component of hoasca
contributed by banisteriopsis- beta
carbolines. Deft. Exh. ZZ, Rpt. of Genser, at 11. Individuals
who drink hoasca while on certain
medications may be at increased risk for developing serotonin
syndrome, a condition
characterized by excessive levels of the neurotransmitter serotonin. For
example, several types of
antidepressants, such as Prozac, contain selective serotonin reuptake
inhibitors (SSRI's). SSRI's
trigger the release of serotonin or prevent its reuptake. Hrg. tr. at
253, testimony of Grob.
Monoamine oxidase inhibitors interfere with the metabolization of
serotinin, and as described above,
hoasca has MAO-inhibiting effects. Pltf. Exh. 11, Decl. of
Grob, at 6. Drinking hoasca while
on an SSRI might create a dangerous interaction, because the
MAOI's in hoasca would hinder the
metabolization of the greater levels of serotonin made
available through the use of the
SSRI. In discussing the risk of serotonin syndrome, the
Government's experts noted that
"irreversible" MAO inibitors- those that "bind to an MAO
molecule and destroy its function
forever"- may interact harmfully with a number of medicines,
as well as with a chemical found in some
common foods. Govt. Exh. ZZ, Rpt. of Genser, at 12.
Irreversible MAO inhibitors are
often present in anti-depressant medications. Id.
Although the Plaintiffs concede
that adverse drug interactions represent a risk connected
with hoasca use, they dispute that
the risk is so substantial as to require the Government to
prohibit the religious consumption
of the tea. The Plaintiffs' experts have cited the following
39
reasons for arguing that the
Government has overstated the danger of adverse drug interactions
involving hoasca. First, the
Plaintiffs maintain that hoasca does not contain irreversible MAO
inhibitors, the type associated
with the most severe drug interactions. Dr. Grob has written that
that "[u]nlike pharmaceutical
MAOI's ... the MAOI effect in ayahuasca is relatively mild, with
comparatively lesser degrees of
risk for dangerous interactions." Pltf. Exh. 12, 2nd Decl. of
Grob, at 2. Dr. Grob has indicated
that in the cases of reactions between ayahuasca and SSRI's
with which he is familiar,
"the duration of the event was relatively brief when compared to more
severe cases of serotonin syndrome
caused by combinations of SSRIs and pharmaceutical
irreversible MAOIs." Id.
Similarly, Dr. Nichols testified for the Plaintiffs that "the possibility
of
physiological consequences with
the reversible MAO inhibitors is much reduced when compared
with the irreversible." Hrg.
tr. a t 1219.
Second, the Plaintiffs have placed
great emphasis on the attention that UDV leadership
has paid to the danger of adverse
drug interactions. Dr. Grob and his colleague, Dr. J.C.
Callaway, first identified the
potential for negative interactions between hoasca and SSRI's in a
scientific article published in
1998.
Pltf. Exh. 12, 2nd Dec]. of Grob,
at 2; Callaway, J.C. &
Grob, C.S. (1998). Ayahuasca
Preparations and Serotonin Reuptake Inhibitors: A Potential
Combination of Severe Adverse
Interaction. J. Psychoactive Drugs, 30.
Deft. Exh. KK. Dr.
Grob has testified that the UDV
has been receptive to concerns about adverse drug reactions. He
wrote in his second declaration
that "[Hollowing discussions of our concerns with physicians of
the UDV, all prospective
participants in ceremonial hoasca sessions have been carefully
interviewed to rule out the
presence of ancillary medication that might induce adverse
interactions with hoasca."
Pltf. Exh. 12, 2nd Deci. of Grob, at 6. See also Hrg. tr. at 254.
40
Finally, the Plaintiffs have
attempted to downplay the risk of adverse reactions posed by
hoasca use, contending that
serotonin syndrome is quite rare and is not experienced by all
individuals who ingest hoasca while
taking SSRI's. Hrg. tr. a t 442-46, testimony of Glaucus
Brito. The Plaintiffs have
portrayed the risk of serotonin syndrome associated with hoasca as
falling within the normal spectrum
of concerns with drug interaction. They point out that
Government expert Dr. Genser
stated, during the hearing, that he would be more troubled by a
person drinking grapefruit juice
while taking a contraindicated drug than by a UDV member
taking hoasca in a ceremonial context.
Hrg. tr. at 964.
The Government has identified
other indications that the UDV's hoasca use is not as safe
as the Plaintiffs claim. Data
collected by DEMEC, the medical-scientific department of the
Brazilian UDV, raises particular
concern. Since 1996, DEMEC has gathered reports of cases of
psychological problems experienced
by church members from the three most heavily populated
regions of Brazil. Hrg. tr. a t 425-26,
testimony of Brito. The organization's records include
retrospective reports of cases
that had occurred in the five years prior to 1996. Id. at 425. The
DEMEC documents disclose that
there have been 24 incidents of psychosis among users of
hoasca in church ceremonies. Dr.
Glaucus Brito, the director of DEMEC, testified that "[o]ut of
these 24 cases, we have one in
which the tea acts as a trigger with no prior occurrences, and then
we have seven in which the tea
acted as a resharpening mechanism for ... a prior mental
condition that was not identified,
but it was identified during the course of the investigation by
the psychiatrist." Hrg. tr.
at 424-25. Dr. Brito went on to explain that "out of these 24, there
were 11 in which there was no
relationship whatsoever between the event and the use of the tea."
Id. at 425.
41
Dr. Genser has stated that the
information contained in the DEMEC reports reinforces
his belief that hoasca use in the
UDV presents a significant risk of psychotic incidents. Dr.
Genser testified that among the
range of possible physical and psychological effects that could
be associated with hoasca use,
"psychosis is definitely of most concern," in terms of both
severity and likelihood. Hrg. tr.
a t 960-61. Even if the percentage of psychotic episodes
reported among UDV members was on
the low end of the average range for the general
Brazilian population, he
explained:
I would still be concerned because
from all of the descriptions I have read, Dr.
Brito's deposition, the UDV, the
DEMEC documents, Mr. Bronfman's
deposition, the UDV screens out a
certain number of people with vulnerabilities
to psychosis and provides an
environment that tends to encourage healthier
behaviors and healthier
life-styles and provides a level of social connectedness for
the individual that- it's
generally greater than the average member of the general
population. All of those factors
would, I believe, tend to lower the expected
incidence of psychosis a good bit
below that in the general population. So the
fact that the incidence of
psychosis is still within range of the general population,
in combination with the fact that
a number of those incidents reported are
attributed to the hoasca really
strengthened my concern about the hoasca.
Hrg. tr. a t 862-63. Dr. Genser
also stated that he would expect that cases of psychosis would be
underreported to the DEMEC
monitoring system. Hrg. tr. at 861.
The Plaintiffs deny that available
evidence suggests that hoasca use is likely to cause
severe psychotic events.
Discussing the DEMEC documents, Dr. Grob commented that many of
the reported psychiatric problems
"were relatively transient in nature and resolved." Hrg. tr. a t
251-52. In the "few cases of
very serious mental illness," the individuals "appeared to have ...
long-standing problems insofar as
their mental function." Id. at 252. Dr. Grob doubted whether
hoasca was a "key
precipitant" in several of the reported episodes- "in many of these
cases the
hoasca seemed to be just
coincidental to it." Id. In addition, Dr. Grob noted that "given how
42
many people participate and how
many years they have been trying to collect such data," the
reports represent "a very small
number of cases." Id. at 252-53.
The Plaintiffs presented the
testimony of Dr. Brito in support of their argument that the
rate of reported psychosis among
UDV members in Brazil does not exceed the rate of psychosis
in the general population. About
one percent of the world's population is believed to be
schizophrenic. Hrg. tr. a t 439.
The DEMEC records were generated from observations of about
1,400 to 1,500 individuals
participating in UDV ceremonies. Id. a t 438. If 13 of these people
experienced psychotic episodes
linked in some way to hoasca, this would represent only .9
percent of the observed
participants. Id. Dr. Brito stressed that the figure of .9 percent is based
on conservative methods of calculation.
Id. a t 439-440. If the 1,400 people observed were
drinking the tea twice a month
during the years for which data was collected, calculating the
number of psychotic events per
number of hoasca exposures would result in a smaller
percentage. Id.
The Government argues that research on UDV members suggests that hoasca may have
negative physical effects as well
as negative psychological effects. During the 1993 hoasca
study, investigators found that
eight of the fifteen subjects in the test group had cardiac
irregularities, while only one
subject in the control group had such irregularities. Hrg. tr. 504-
05, testimony of Brito. The
Plaintiffs counter that cardiac alterations detected are not necessarily
linked with heart disease. For
example, four of the eight test subjects had bradychardia, or slow
heartbeat, a condition that is
associated with young athletes as well as people with certain types
of heart disease. Hrg. tr. a t 504,
testimony of Brito; Hrg. tr. at 878-79, testimony of Genser.
In discussing his concerns about
hoasca use in his expert report, Dr. Genser cited a recent
43
study conducted by Jordi Riba. J.
Riba, et al. (2001). Subjective Effects and Tolerability of the
South American Beverage Ayahuasca
in Healthy Volunteers. Psychopharmacology, 154, 85-95.
Deft. Exh. BBB. The researchers administered
encapsulated ayahuasca, in increasing doses, to
six volunteers. Riba and his
colleagues reported that "one volunteer experienced an intensely
dysphoric reaction with transient
disorientation and anxiety at the medium dose and voluntarily
withdrew from the study." Id.
The Plaintiffs have questioned the applicability of the Riba study
to an evaluation of the risks
presented by the UDV's ceremonial consumption of hoasca. The
Plaintiffs have observed that the
concentrations of DNIT and beta-carbolines in the ayahuasca
capsules administered by Riba were
stronger than the concentrations in the hoasca seized from
the UDV. See Hrg. tr. at 871. The
Plaintiffs also emphasize that the Riba study did not take
place within a religious context,
and that the anxiety experienced by the one test subject was
only transient in nature. Id. a t 875-76.
In considering the evidence
submitted by the parties, this Court has been struck by the
closeness of the questions of fact
presented in this case. The Court has no doubt that in other
contexts, the risks that the
Government has identified would be sufficient to support a decision
against allowing individuals to
consume hoasca pending further study of the substance. Indeed,
even the scientific experts
testifying on behalf of the Plaintiffs appear to recognize the need for
additional research into the
health consequences of ceremonial hoasca use.
However, in this case, the
Plaintiffs have raised a claim under a powerful statute passed
by Congress specifically to
override a ruling by the Supreme Court of the United States. The
Government concedes, at this
stage, that application of the CSA to the UDV's use of hoasca
imposes a substantial burden on
the practice of the Plaintiffs' religion. By passing RFRA,
44
Congress required the Government
to justify this imposition with a showing of a compelling
government interest. As to the
subject of health risks, the evidence presented by the parties is,
essentially, in equipoise. This
Court cannot find, in light of the closeness of the evidence, that
the Government has successfully
carried its onerous burden on the issue of health risks to UDV
members.
b.
POTENTIAL FOR DIVERSION TO
NON-RELIGIOUS USE
The Government alleges that it has
a compelling interest not just in protecting the
physical and psychological health
of the UDV members who wish to consume hoasca, but also
in ensuring of the safety of
individuals who might ingest hoasca in a non-ceremonial
environment. If the UDV were
allowed to use hoasca in its church services, the Government
argues, the tea could be diverted
to potentially harmful uses in non-religious, unsupervised
settings. In contrast, the
Plaintiffs take the positionas
articulated by their expert
witness, Dr.
Mark Kleiman- that "[t]here
is no currently available evidence to suggest that such
[diversionary] effects, were they
to occur, would be large." Pltf. Exh. 16, decl. of Kleiman, at 9f
29.
The Government's analysis hinges
on the factual premise that the hoasca used by the
UDV would be vulnerable to
diversion. To help establish this premise, the Government
presented the expert opinions of
Terrance Woodworth, Deputy Director of the Drug
Enforcement Administration's
Office of Diversion Control. Mr. Woodworth identified "several
factors that are relevant to the
assessment of a controlled substance's potential for diversion,"
including "the existence of
an illicit market for the substance, . . . the existence of `marketing' or
publicity about the substance, and
the form of the substance." Deft. exh. ZZZ, Rpt. of Terrance
45
Woodworth, at 3. In addition, Mr.
Woodworth stated, "[a] substance's potential for diversion is
also affected by the opportunity
for, and the cost of, diverting the substance, . . the level of
control placed upon the substance,
the form of the substance, and the degree to which the
substance is in movement from
place to place." Id. a t 3-4.
The Government contends that the
extent of the illicit market for hoasca would be
determined, in large part, by
whether hoasca has a significant potential for abuse. Dr. Donald
Jasinski, one of the Government's
expert witnesses, addressed this question from the
pharmacological standpoint.'° He
expressed the opinion that the risk of abuse associated with
hoasca is substantial. He supports
his conclusion by pointing first to evidence about the
reinforcing effects of DMT and
hoasca. Positive reinforcing effects "are the transient alterations
in mood, thinking, feeling, and perceptions produced
by [a] drug," and these "effects include
elevation in mood, pleasant
thoughts, feelings of well being and relation, and perceptions that
surroundings were more
pleasant." Deft. Exh. VVV, Rpt. of Jasinski, at 7-8. These positive
effects, called
"euphoria," are the primary factors leading individuals to begin using, and to
continue to use repeatedly, a drug
of abuse. Id.
Dr. Jasinski noted that research
on intravenous DMT indicates that the substance
produces euphoric effects. In
Strassman's study, the investigators "described the onset of
psychological effects within two
minutes with effects completely resolved within 30 minutes
with transient anxiety common,
replaced by euphoria." Deft. Exh. VVV, Rpt. of Jasinski, at 9.
To the extent that preliminary
research has been performed on ayahuasca, it appears that the
substance induces effects similar
to those created by DMT, "although the effects are slower in
io Dr. Jasinski is a Professor of Medicine at
the Johns Hopkins School of Medicine.
46
onset, milder in intensity, and
longer in duration." The reported effects of ayahuasca "include
pleasant feelings and elevations
in mood as well as dysphoric (i.e., anxiety-producing) changes."
Id.
Dr. Jasinski discussed not only
the effects which suggest that hoasca would be subject to
abuse, but also some effects which
might seem to limit hoasca abuse. In particular, hoasca
consumption often causes nausea
and vomiting. While acknowledging that these effects may act
as a deterrent to some
individuals, Dr. Jasinski observed that it is unclear how many users
experience nausea after taking hoasca.
Hrg. tr. a t 997. Further, Dr. Jasinksi pointed out,
negative effects of substances do
not necessarily outweigh the positive effects to the extent that
potential users are completely
deterred from taking the substances. Deft. Exh. VVV, Rpt. of
Jasinski, at 9-10. In the case of
ayahuasca, indigenous people in South America have ingested
the substance for centuries
despite its, association with nausea and vomiting. Hrg. tr. at 999.
Dr. Jasinski stated that another
source of evidence about the abuse potential of ayahuasca
is information known about LSD, a
related drug. DMT produces pharmacological effects similar
to those produced by LSD. Although
there are some differences between LSD and DMT, "[f]or
the purpose of assessing abuse
potential ... the similarities ... outweigh the differences," and
"none of these differences
necessarily detract from the abuse potential of DMT." Deft. Exh.
VVV, Rpt. of Jasinski, at 12. Dr.
Jasinski believes that DMT's pharmacological similarity to
LSD, a drug recognized to have
abuse potential, lends support to his opinion that ayahuasca has
susbtantial abuse potential.
While Dr. Jasinski focused on
ayahuasca's abuse potential from a pharmacological
perspective, Mr. Woodworth
testified about patterns of drug use in the United States that
47
indicate that ayahuasca carries a
significant potential for abuse. During the evidentiary hearing
Mr. Woodworth cited, for example,
National Household Survey on Drug Abuse results showing
that hallucinogen use in this
country has risen substantially in recent years. Hrg. tr. at 1388;
Deft. Exh. CCCC. Mr. Woodworth expressed
the opinion that "[t]he existence of the welldocumented
increasing interest in and demand
for hallucinogens greatly increases the potential
for abuse- and consequently
diversion- of any substance having hallucinogenic qualities." Deft.
Exh. ZZZ, Rpt. of Woodworth, at 4.
Mr. Woodworth cited several
reasons, in addition to hoasca's abuse potential, for
believing that there would be a
demand for hoasca in the illicit market. Advertisements for
hoasca on the internet reflect
growing interest in the drug, he testified. Hrg. tr. at 1392; Rpt. at
5; Exh. EEEE. Increased publicity
will, in turn, generate even more interest. Rpt. at 5. Hoasca
use in Europe, often a helpful
indicator for determining the possibility of the diversion in the
United States, has risen
substantially in recent years. Id. Mr. Woodworth observed that hoasca's
form- a tea- might contribute to
the substance's draw. He reasons that "[d]rinking a cup of tea
may appear more appealing to some
abusers than chewing a dried plant material, as is the case
with peyote, or shooting up,
smoking, or snorting, as is done with many other substances of
abuse." Id. at 5-6.
Mr. Woodworth attributes the
relatively low level of ayahuasca abuse in the United
States, at the present time, to
the lack of availability of the plant components in this country. Id.
at 6. Mr. Woodworth explained that
if the UDV is permitted to import hoasca for their religious
ceremonies, the greater physical
presence of the substance in the United States will increase the
likelihood of diversion and abuse.
Id. Further, the international transportation process itself will
48
expose the tea to illicit
diversion. Controlled substances shipped in international commerce are
particularly vulnerable to
diversion, whether through theft, loss, or fraud. Id, at 6-7. Controls
imposed by the country of origin
may help reduce the risk of diversion, Hrg. tr. a t 1401, but in
this case, the Brazilian
government does not carefully regulate the UDV's production of
ayahuasca. Hrg. tr. a t 1403.
The Government has suggested that
there are specific characteristics of the UDV that
indicate that the hoasca shipped
to the church would be prone to illegal diversion. For example,
Mr. Woodworth noted at the
evidentiary hearing that the federal government has established a
cooperative, working relationship
with the Native American Church in order to minimize the
diversion of peyote. However, Mr.
Woodworth doubts whether the government could build a
similar relationship with the UDV:
. . . based on their lack of
candor with regard to what has been brought in for the
last ten years. They have never
contacted DEA. They have never attempted to
get registered with DEA. They have
never tried to have hoasca exempted from
controlled status. And in the
seizures, the documentation clearly was either
disguised or mislabeled.
Hrg. tr. at 1424. The Government
further supported this argument through the introduction of
exhibits in the nature of UDV
correspondence stressing the need for confidentiality about church
sessions, and shipping forms in
which UDV leaders in the United States listed hoasca as "herbal
extract." See, e.g., Deft.
Exhs. NNNNN and RRRRR.
The Plaintiffs dispute the
fundamental premises of the Government's arguments on the
diversion issue. They maintain,
first, that hoasca does not carry the significant potential for
abuse that the Government
attributes to the substance. Dr. Kleiman, the Plaintiffs' expert, takes
the position that demand for
hoasca would be relatively low, because of negative side effects
49
associated with the substance and
because of the availability of substitutes for hoasca." Hrg. tr.
at 680. Dr. Kleiman disagrees with
Dr. Jasinski about the deterrent effect of hoasca's nauseant
properties. Dr. Kleiman has
written that "[w]hile many drug abusers tolerate a variety of
inconveniences and discomforts
associated with the drugs they take and the ways in which they
take them, it is not reported that
drug abusers as a class, or users of hallucinogens in particular,
enjoy nausea or vomiting."
Pltf. Exh. 16, Decl. of Kleiman, at T 21. Dr. Kleiman explained that
individuals using hallucinogens
may be even less inclined to tolerate nausea than users of other
types of drugs, by observing:
According to the research
literature, hallucinogenic substances, including DMT,
score much lower on scales
measuring reinforcement, and have much less
tendency to create dependency,
than opiates, such as heroin. That is, those
exposed to hallucinogens once
display far less motivation to experience second
and subsequent doses than those
exposed to opiates, and a far smaller proportion
of them develop drug dependency as
defined by accepted clinical criteria
("addiction"). This
would suggest that a much smaller proportion of hallucinogen
users than of opiate users would
be so strongly driven to seek out the drug
experience as to neglect the
presence of side-effects.
Id. at 122.
Dr. Kleiman also stressed that
individuals interested in experiencing the effects of oral
DMT would not necessarily demand
the particular tea preparation employed in UDV
ceremonies. Rather, "any
preparation that included DMT and a sufficient quantity of any
monoamine oxidase inhibitor would
suffice." Id. a t 116. Plants that contain DMT and plants
that contain harmala alkaloids are
available in the United States. Id. at 118. Some of the
alternative preparations combining
DMT and haramala alkaloids do not induce nausea in the
way that hoasca does. Dr. Kleiman
thus believes that "the widespread availability of
Dr. Kleiman is a Professor of
Policy Studies at the University of California, Los
Angeles.
50
pharmacologically equivalent
substitutes, some of them with fewer unwanted side-effects and
less apparent legal risk, would
greatly reduce the motivation to divert the sacramental material
for purposes of drug abuse." Id.
a t 125.
Dr. Kleiman also mentioned other
factors that would tend to prevent widespread
diversion of hoasca from the UDV.
First, the United States UDV is a very small church and
would not be importing huge
quantities of tea from Brazil- only about 3,000 doses per year. Dr.
Kleiman commented that,
"[e]ven if, by some happenstance, all 3,000 doses were diverted and
you would ask me as a drug policy
expert: Did a big disaster just happen or not, I would say no,
not a very big disaster." Hrg.
tr. at 696.
Second, the relative
"thinness of the potential market" for hoasca would reduce the
likelihood of diversion that might
occur with widely-used drugs. Hrg. tr. at 697. A casual thief
in possession of a pharmaceutical
cocaine shipment would have little trouble locating a buyer.
In contrast, an individual would
probably need to have some specific knowledge about the
extremely limited hoasca market in
order to distribute the tea. According to Dr. Kleiman, the
nature of the hoasca market may
thus discourage potential diversion of the tea to illicit use. Hrg.
tr. at 698-99.
Third, the bulky form of hoasca
would deter diversion. The 3,000 doses of tea that the
UDV might import per year would
produce several hundred liters of liquid. Dr. Kleiman
testified that there is an inverse
relationship between the volume of a substance and its
susceptibility to theft. During
the evidentiary hearing, he stated that "[t]he ease of stealing goes
up as the volume goes down. The
larger the volume, the harder something is to steal." Hrg. tr.
a t 718.
5 1
Finally, Dr. Kleiman emphasized
that the UDV has a strong motivation for keeping the
hoasca supply from being diverted.
The tea "is considered a sacrament within the UDV, and its
use outside the ceremonial
religious context of the church is considered by members of the UDV
to be sacrilegious." Pltf.
Exh. 16, Decl. of Kleiman, at J[ 26. Dr. Kleiman believes that the
UDV's interest, under church
doctrine, in preventing hoasca from being used improperly would
make it likely that the church
would cooperate with governmental authorities to track down any
tea that is diverted. Hrg. tr. at 703.
As on the issue of health risks to
UDV members, the parties have presented virtually
balanced evidence on the risk of
diversion issue." Again, this Court finds that the Government
has failed to meet its difficult
burden of showing a compelling interest in preventing the
diversion of hoasca to illicit
use.
c.
1971 CONVENTION ON PSYCHOTROPIC SUBSTANCES
Upon its initial review of the
parties' briefs, the Court believed that the Government's
strongest arguments for
prohibiting the UDV's use of hoasca stemmed from concerns about the
safety of drinking the tea in a
religious setting and the problems that might emerge if hoasca
were diverted to use in
non-religious settings. For that reason, the Court asked the parties to
present evidence on these two
subjects during the hearing held in October and November, 2001.
However, the Government has
alleged a third compelling interest in addition to those addressed
at the hearing. According to the
Government, the United States must apply the CSA's ban on
DMT to the UDV's use of hoasca in
order to adhere "to an important international treaty
obligation." Response, at 16.
' ' The Court notes that the
specificity of Dr. Kleiman's analysis may even tip the scale
slightly in favor of the
Plaintiffs' position.
52
The United Nations Convention on
Psychotropic Substances, represents an international
effort "to prevent and combat
abuse of [psychotropic] substances and the illicit traffic to which it
ted Nations Convention on
Psychotropic Substances, 1971, opened for signature gives rise."
February 21, 1971, 32 U.S.T. 543,
1019 U.N.T.S. 175, at Preamble. The treaty was opened for
signature in 1971, entered into
force in 1976, and was ratified by the United States in 1980.
Decl. of Robert Dalton, Exh. B. to
Deft. Response, at 9[ 3. More than 160 nations are party to the
treaty, including Brazil. The
treaty adopts a scheduling system for substances similar to that
found in the CSA. DMT is listed in
Schedule 1, the category subject to the strictest controls.
Article 7 provides that parties to
the treaty "[p]rohibit all use" of Schedule 1 substances,
"except
for scientific and very limited
medical purposes." Article 7(a). Parties must also "[p]rohibit
export and import" except
under very restrictive conditions. Article 7(1).
The Government asserts that the
Convention on Psychotropic Substances requires the
United States to ban the UDV's
ceremonial consumption of hoasca. Article 3(1) of the treaty
makes clear that "a
preparation is subject to the same measures of control as the psychotropic
substances which it
contains." The treaty defines a preparation as "[a]ny solution or mixture,
in
whatever physical state,
containing one or more psychotropic substances." Article 1(f)(i). The
Government appears to contend that
even if the treaty's prohibition on DMT did not include
hoasca tea, the provisions
regarding "preparations" clearly extend the treaty's coverage to
hoasca.
The Government notes that the
treaty permits exceptions for the religious use of drugs,
but argues that those exceptions
are not applicable to the UDV. Article 32(4) reads:
5 3
A State on whose territory there
are plants growing wild which contain
psychotropic substances from among
those in Schedule I and which are
traditionally used by certain
small, clearly determined groups in magical or
religious rites, may, at the time
of signature, ratification or accession, make
reservations concerning these
plants, in respect of the provisions of article 7,
except for the provisions relating
to international trade.
The United States could not have
relied on this provision to justify permitting the religious use of
hoasca because, among other
reasons, the plant ingredients of hoasca are not indigenous to this
country. The Government argues
that the treaty's specific allowance for religious exceptions
under particular circumstances
implies that the treaty does not permit other exceptions for
religious use of scheduled
substances.
Abiding by the terms of the
Convention on Psychotropic Substances is, the Government
maintains, a compelling interest.
In general, principles of international law instruct that nations
must honor the obligations imposed
through treaties. For example, the Vienna Convention on
the Law of Treaties states that
"[e]very treaty in force is binding upon the parties to it and must
be performed by them in good
faith." Decl. of Dalton, Exh. B. to Deft. Response, at 110. The
Government takes the position that
the United States has a particular interest in adhering to the
Convention on Psychotropic
Substances. The United States calls on the treaty to elicit
cooperation from other nations in
fighting international drug trafficking. According to the
Government, breaching the
obligations set forth in the Convention would undermine the United
States' efforts to encourage other
nations to comply with the agreement, and might interfere with
the willingness of other nations
to form treaties with the United States in the future. Id. at 112.
In responding to the Government's
position, the Plaintiffs challenge whether the
Convention on Psychotropic
Substances actually applies to hoasca. The Plaintiffs point out that
there are several indications that
plants containing scheduled hallucinogenic substances are not
54
necessarily prohibited under the
treaty. The Commentary on the Convention on Psychotropic
Substances, published by the
United Nations in 1976, suggests that the listing of a chemical
component in the treaty does not
imply that a plant containing that chemical is likewise banned.
For example, the Commentary notes
that:
Schedule I does not list any of
the natural hallucinogenic materials in question,
but only chemical substances which
constitute the active principles contained in
them. The inclusion in Schedule I
of the active principle of a substance does not
mean that the substance itself is
also included therein if it is a substance clearly
distinct from the substance constituting
its active principle. Neither the crown
(fruit, mescal button) of the
Peyote cactus nor the roots of the plant Mimosa
hostilis nor Psilocybe mushrooms
themselves are included in Schedule I, but only
their respective active
principles, mescaline. DMT and psilocybine.
Commentary, at 387. Elsewhere, the
Commentary states that "[p]lants as such are not, and- it is
submitted- are also not likely to
be, listed in Schedule I, but only some products obtained from
plants." Id. at 385.
Under the interpretation of the
Convention favored by the Plaintiffs, the treaty included a
provision allowing nations to
reserve some religious uses of indigenous plants so that parties
could ensure that any scheduling
of plants in the future would not interfere with certain religious
practices; the reservation
provision was not inserted because plants are presently illegal under
the treaty. The Commentary
provides support for this analysis, noting that because there is a
possibility "that the fruit
of the Peyote cactus, the roots of Mimosa hostilis, Psilocybe
mushrooms or other hallucinogenic
plant parts used in traditional magical or religious rites will
in the future be placed in
Schedule I," that parties could "make a reservation assuring them the
right to permit the continuation
of the traditional use in question." Id. a t 387.
Certainly the United States Senate
Committee on Foreign Relations, when it
recommended the ratification of
the Convention, seemed to hold the view that plants were not
55
automatically covered through the
listing of their chemical components. The Committee's report
stated that:
Since mescaline, a derivative of
the peyote cactus, is included in Schedule I of the
Convention, and since the
inclusion of peyote itself as an hallucinogenic
substance is possible in the
future, the Committee accepted the Administration's
recommendation that the instrument
of ratification include a reservation with
respect to peyote harvested and
distributed for use by the Native American
Church in its religious rites.
S. Exec. Rept. No. 96-29,
Convention on Psychotropic Substances, 96th Cong., 2d. Sess., at 4
(1980).
In addition, the Plaintiffs
provide examples of how, in operation, the treaty seems to
reflect the understanding that the
listing of a hallucinogenic chemical does not imply the listing
of a plant containing that
chemical. While the United States made a reservation for the use of
peyote by the Native American
Church within this country, under Article 32(4), it did not make a
reservation to export peyote for
use by religious groups in other countries. However, the United
States apparently permits the
exportation of peyote to Native American Church groups in
Canada. See 37 Tex. Admin. Code §§
13.81-87; Exh. T to Pltf. Reply (list of Canadian Native
American Church organizations
registered with the Texas Department of Public Safety.)
Exportation of a Schedule I
substance for other than scientific or medical purposes would appear
to violate the Convention, in the
absence of a reservation. The conduct of the parties to the
Convention, concerning the export
of peyote, therefore suggests that peyote is not a scheduled
substance, although mescaline is.
The Plaintiffs present a very
persuasive analysis as to why plants containing
hallucinogenic chemicals are not
necessarily covered within Schedule I of the Convention. As
the Defendants have emphasized,
though, and as this Court noted above, the treaty contains
5 6
special provisions regarding
preparations: "a preparation is subject to the same measures of
control as the psychotropic
substance which it contains." Article 3(1). In applying the treaty to
hoasca, it would be possible to
conclude that even if Schedule I does not cover psychotria
viridis- the plant component of hoasca that
contains DMT- Schedule I does extend to hoasca
tea under the treaty's
"preparation" provision. To counter this proposition, the Plaintiffs
have
offered strong arguments
concerning why, if the treaty does not extend to psychotria viridis, the
treaty would not extend to a tea
made from a combination of psychotria viridis and another plant.
First, the Plaintiffs rely on the
statement in the Commentary to the Convention, quoted
above, that "[t]he inclusion
in Schedule I of the active principle of a substance does not mean
that the substance itself is also
included therein if it is a substance clearly distinct from the
substance constituting its active
principle." Commentary, at 387. The Plaintiffs maintain that
hoasca is clearly distinct from
DMT, just as psychotria viridis is, and that there are no
indications that the tea-making
process produces a chemical separation of DMT.
Second, the Plaintiffs point out
that the Commentary appears to assume that infusions
and beverages made from plants
containing hallucinogenic substances do not fall within
Schedule I. In noting that
"[n]either ... the roots of the plant Mimosa hostilis nor Psilocybe
mushrooms themselves are included
in Schedule I, but only their respective active principles,"
the Commentary observes by
footnote that "[a]n infusion of the roots is used" to consume
Mimosa hostilis, and that
"[b]everages ... are used" to consume Psilocybe mushrooms.
Commentary, at 387; nn. 1227-28.
Based on the analysis offered by
the Plaintiffs, this Court finds that the 1971 Convention
57
on Psychotropic Substances does
not apply to the hoasca tea used by the UDW 3 Therefore, the
United States' interest in
adhering to the Convention does not, in this case, represent a
compelling reason for extending
the CSR's ban on DMT to the UDV's ceremonial hoasca use.
2.
LEAST RESTRICTIVE MEANS
Under RFRA, the Government must
establish not only that a burden placed on an
individual's religious practice
"is in furtherance of a compelling governmental interest," but also
that the burden "is the least
restrictive means of furthering that compelling governmental
interest." 42 U.S.C. §
2000bb-1(b). In this case, the Court has concluded that the Government
has failed to carry its heavy
burden of showing a compelling government interest in protecting
the health of UDV members using
hoasca or in preventing the diversion of hoasca to illicit use.
In addition, the Government has
not demonstrated that prohibiting the UDV's ceremonial use of
hoasca furthers an interest in
adhering to the 1971 Convention on Psychotropic Substances,
because the treaty does not appear
to extend to hoasca. The Court thus does not reach the
question of whether the Government
has employed the least restrictive means of accomplishing
its stated goals.
IV.
REMAINING REQUIREMENTS FOR
PRELIMINARY INJUNCTION
The Court has found that the
Plaintiffs have demonstrated a substantial likelihood of
success as to their RFRA claim. As
this Court noted in its discussion of the standard of review,
13
This Court acknowledges that its
conclusion that the Convention on Psychotropic
Substances does not extend to
hoasca, without explanation, may appear to conflict with its
interpretation of a similar
provision in the CSA. However, the Convention significantly differs
from the CSA in that the
Convention introduces on its face, through the reservation provision,
the proposition that plants may
receive different treatment than chemical components. Given
this, the Court felt it
appropriate to turn to the Commentary, which makes clear that, unlike the
CSA, the scheduling of a
hallucinogenic chemical in the Convention does not imply the
scheduling of a plant that
contains that chemical.
58
parties seeking preliminary
injunctions must show not only a substantial likelihood of success on
the merits, but also that there
will be "irreparable injury to the movant if the preliminary
injunction is denied," that
"the threatened injury to the movant outweighs the injury to the other
party under the preliminary
injunction," and that "the injunction is not adverse to the public
interest." Kikumura, 242
F.3d at 955.
With respect to the first of these
other requirements, Tenth Circuit law indicates that the
violations of the religious
exercise rights protected under RFRA represent irreparable injuries.
In Kikumura, the Tenth
Circuit observed that "courts have held that a plaintiff satisfies the
irreparable harm analysis by
alleging a violation of RFRA." Id. at 963. In support of this
proposition the Kikumura court
quoted the Second Circuit, which has held that "although the
plaintiff's free exercise claim is
statutory rather than constitutional, the denial of plaintiff's right
to the free exercise of his
religious beliefs is a harm that cannot be adequately compensated
monetarily." Jolly v.
Coughlin, 76 F.3d 468, 482 (2d Cir. 1996).
The Tenth Circuit's emphasis on
the harms presented by the violation of religious rights,
reflected in the Kikumura case,
also informs this Court's conclusions regarding whether the
Plaintiffs have met the remaining
two requirements for preliminary injunction. This Court
acknowledges that the Government
has presented a great deal of evidence suggesting that hoasca
may pose health risks to UDV
members and may be subject to diversion to non-religious use.
However, in balancing the
Government's concerns against the injury suffered by the Plaintiffs
when they are unable to consume
hoasca in their religious ceremonies, this Court concludes that,
in light of the closeness of the
parties' evidence regarding the safety of hoasca use and its
potential for diversion, the scale
tips in the Plaintiffs' favor. Likewise, this Court believes that
59
an assessment of whether a
preliminary injunction would be adverse to the public interest must
take into account the public's
interest in the vindication of the religious freedoms protected
under RFRA- a statute which
Congress, as the representative of the public, enacted specifically
to countermand a Supreme Court
ruling. See,
e.g., Elam Constr., Inc. v. Regional Transp. Dist.,
129 F.3d 1343, 1347 (10th Cir.
1997) (stating in the context of a Constitutional claim that "[t]he
public interest ... favors
plaintiffs' assertion of their First Amendment rights.") This Court thus
concludes that the Plaintiffs have
satisfied the requirements for preliminary injunction as to their
RFRA claim.
V. CONCLUSION
The Plaintiffs have failed to
establish a likelihood of success on the merits of their claims
under Equal Protection principles,
the Free Exercise of the First Amendment to the United States
Constitution, canons of statutory
construction, and the international law of comity.
However,
the Court has concluded that the
Plaintiffs are likely to succeed on the merits of their claim under
RFRA. In addition, the Plaintiffs
have satisfied the other requirements for preliminary
injunction on the basis of their
RFRA claim.
This Court has scheduled a hearing
on August 19, 2002 to discuss with counsel issues
concerning the nature and
implementation of the preliminary injunctive relief to which the
Plaintiffs are entitled. The Court
will address the Plaintiffs' APA argument at that time, as well
as the Plaintiffs' contention that
the Fourth and Fifth Amendments to the United States
Constitution require the
Government to return to the UDV the hoasca confiscated by the
Government.
IT IS THEREFORE ORDERED that:
1)
The Plaintiffs' Motion for Preliminary
Injunction (Doc. No. 10) is denied as to:
60
a)
Their claim under the First
Amendment to the United States Constitution;
b)
Their claim that the CSA does not
apply to hoasca;
c)
Their. claim that principles of
international law require that the
Government permit the UDV's hoasca
use; and
d)
Their claim under the Equal
Protection Clause of the Fourteenth
Amendment, made applicable to
federal statutes by the Due Process Clause of the Fifth
Amendment.
2)
The Plaintiffs' Motion for
Preliminary Injunction is granted as to their claim
under the Religious Freedom
Restoration Act;
3)
A hearing on the form of
preliminary injunction is set for August 19, 2002 at 1:30
p.m.
No.
04A469
IN THE SUPREME COURT OF THE UNITED STATES
JOHN ASHCROFT, ET AL.,
Applicants,
v.
O CENTRO ESPIRITA BENEFICIENTE UNIAO DO
VEGETAL, ET AL.,
Respondents.
RESPONSE IN OPPOSITION
TO EMERGENCY STAY APPLICATION
INTRODUCTION
The parties opposing the stay application are a Christian religious
organization, O Centro Espirita Beneficiente Uniao Do Vegetal, and several
members of its leadership (collectively, “UDV”). The UDV is the small American branch of a religion founded many
years ago in Brazil, which the Brazilian government officially recognizes and
exempts from its controlled substances laws.
The American branch includes about 140 members, who are both American
and Brazilian. The UDV is well known in Brazil for the salutary effects it has
had on the lives of its adherents and for its extensive and important
charitable activities. A central and
essential element of the UDV religion is its sacramental use of hoasca, an
herbal tea in which is found a small amount of naturally-occurring
dimethyltryptamine (“DMT”), an allegedly Schedule I controlled substance.[1] To members of the UDV, hoasca is sacred and
their sacramental use of hoasca connects them to God.[2]
Attorney General Ashcroft
and the other government applicants for a stay (collectively, “the government”)
have never contested that UDV’s religion is bona
fide, that their beliefs and practices are sincere, or that criminalization
of UDV’s conduct substantially burdens UDV’s exercise of religion. See UDV v. Ashcroft, 282 F.
Supp. 2d 1236, 1252 (D.N.M. 2002) (“[T]he Government did not dispute . . . that
the Plaintiffs had established a prima
facie case under RFRA. Stated
differently, the government conceded . . . that the CSA imposes a substantial
burden on Plaintiffs’ sincere exercise of religion.”). Given these concessions (which the evidence,
in any event, fully supported), it became the government’s obligation to
demonstrate, as required by the RFRA, that the government has a compelling
interest in criminalizing UDV’s sacramental use of hoasca and has adopted the
least restrictive means of furthering that interest. See 42 U.S.C. §2000bb-1 (forbidding the government to
substantially burden a person’s exercise of religion unless the government
“demonstrates that the application of the burden to the person” furthers a
compelling interest in the least restrictive means); see also O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, No. 02-2323,
2004 WL 2569531, at *25 (10th Cir. Nov. 12, 2004) (hereinafter “UDV”);
Larsen v. US. Navy, No. 02-2005 (RMU), 2004 WL 2651373, at *12 (D.D.C.
Nov. 18, 2004) (“To establish a prima facie case under the RFRA, a plaintiff
must show that the government action at issue works a substantial burden on the
plaintiff's ability to freely exercise his sincere religious beliefs.”). This case has not gone beyond the
preliminary injunction stage. At that
stage, however, if the issue is whether the government has a compelling
interest and has adopted the least restrictive means, the government must still
“shoulder its full . . . burden of proof.”
Ashcroft v. ACLU, __ U.S. __, 124 S. Ct. 2783, 2794 (2004)
(applying strict scrutiny to law aimed at preventing distribution of child
pornography over the internet).[3]
Mindful of RFRA’s
requirements, the district court provided the parties with a full opportunity
to litigate the RFRA issues. Before
ruling on UDV’s motion for preliminary injunction, the court allowed the
parties many months of discovery and held a two-week long evidentiary hearing.[4] During discovery, the government took the
depositions of all UDV’s expert and fact witnesses. At the hearing, the district court provided the government with
unlimited opportunity to introduce evidence to demonstrate that the government
had any compelling interest in criminalizing the ceremonial use of hoasca. Expert and lay witnesses testified for both
parties regarding the pair of purported compelling interests the government
chose to litigate–risks to health and safety and the likelihood of diversion
for non-religious use.[5]
The most that can be said
of the government’s evidence is that it revealed that the government’s concerns
about the health risks associated with ceremonial hoasca consumption were
unsubstantiated, as were its concerns that UDV’s sacramental hoasca might be
diverted to non-religious use.[6] UDV responded with extensive expert[7]
and lay testimony that there were and had been no significant health risks
associated with the ritual use of hoasca, here or in Brazil; that the risk of
diversion was between negligible and non-existent, given the disagreeable and
nauseating nature of hoasca and the ready availability of less disagreeable,
less bulky and far more potent substances; and that no diversion ever occurred
during the many years that UDV practiced its religion unmolested by the
government. Furthermore, the government
never attempted to explain why it has consistently taken the position that the
sacramental use of peyote (another Schedule I controlled substance that, by
statutory definition, also has “a high potential for abuse,” “no currently
accepted medical use” and “a lack of accepted safety”) is good for the members
of the Native American Church, is of no concern to the government, and is
properly excepted from the CSA,[8]
but here takes the position–without even a cursory investigation, much less any
scientific inquiry–that UDV’s use of a similar substance must be
criminalized.
The district court
concluded that “the Government has not shown that applying CSA’s prohibition on
DMT to the UDV’s use of hoasca furthers a compelling interest,” rejecting both
of the government’s factual assertions.
Id. at 1255. The district court found that the government failed
to prove that (1) “hoasca poses a serious health risk to the members of the UDV
who drink the tea in a ceremonial setting”; and (2) “permitting members of the
UDV to consume hoasca would lead to significant diversion of the substance to
non-religious use.” Id. Based
largely on these findings, the district court issued the preliminary
injunction. Both a panel of the Tenth
Circuit Court of Appeals and the Court of Appeals sitting en banc affirmed the district court. See UDV, 2004 WL 2569531, at *1; UDV v. Ashcroft,
342 F.3d 1170, 1172 (10th Cir. 2003).
During the two years
following the district court’s entry of its preliminary injunction, the
government has neither requested a hearing on the merits nor attempted to bring
any new evidence to the district court’s attention. Instead, the government has used the appeal process–including a
request for rehearing en banc; a
so-called emergency stay from two of the appellate judges who later dissented
below (out of the thirteen sitting en
banc);[9]
and the present stay application–to continue to burden UDV’s exercise of
religion, in derogation of its RFRA right to be free from such a burden, unless and until the government carries
its burden to show compelling interest and least restrictive means. In short, UDV has now suffered close to four
years of the very harm that Congress sought to prevent by enacting RFRA. See 42 U.S.C. §2000bb(b) (“The
purposes of this Act are . . . to restore the compelling interest test . . .
and to guarantee its application in all cases where free exercise of religion
is substantially burdened.”); UDV, 2004 WL 2569531, at *29 (10th Cir.
Nov. 12, 2004) (“[T]he district court, acknowledging its jurisdiction was
founded upon RFRA, correctly recognized that the violation of one's right to
the free exercise of religion necessarily constitutes irreparable harm.”); Jolly
v. Coughlin, 76 F.3d 468, 482 (2d Cir. 1996) ("Courts have
persuasively found that irreparable harm accompanies a substantial burden on
the individual’s rights to the free exercise of religion under
RFRA.").
The Court of Appeals and
district court have, collectively, thrice rejected the four arguments the
government advances here: (1) that the government need not carry the RFRA
burden it might have to carry in other contexts because, when Congress placed
DMT on the list of controlled substances, it necessarily determined that the
government has a compelling interest in criminalizing its possession or
distribution; (2) that the government need not prove a compelling interest in
this case because it is axiomatic that the government has a compelling interest
in the “uniform enforcement” of its controlled substances laws; (3) that
because the district court found the evidence relating to health and safety was
“in equipoise,” the government must have carried its burden for purposes of a
preliminary injunction; and (4) that this Court should take judicial notice
that the government has a compelling interest in enforcing against UDV the 1971
Convention on Psychotropic Substances which, according to the government,
forbids the importation of hoasca, even for religious purposes. Stated more broadly, the government’s
position is that because this case involves a controlled substance, the lower
courts should have suspended RFRA’s requirement that the government actually
adduce evidence of its purported compelling interests. The problem the government faces now is that
its evidence does not support its arguments.
As a result, the government now resorts to arguing that Congress’s
findings relating to the dangers of controlled substances are somehow
conclusive, even though RFRA explicitly instructs the courts to the
contrary. See 42 U.S.C.
§2000bb-3 (“This chapter applies to all Federal . . . law, and the
implementation of that law, whether statutory or otherwise . . .”).
As amici[10]
argued eloquently below, the government’s arguments must be rejected if
RFRA is to have any meaning:
Under RFRA, a court may not simply
defer to the legislature’s general treatment of a problem – not to Congress’s
general scheduling of a controlled substance, any more than to the state’s
judgment in [Wisconsin v. Yoder,
506 U.S. 205 (1972)] that education is generally important, or the
congressional judgment in [United
States v. Hardman, 297 F.3d 1116 (10th Cir. 2002)] that eagles
generally need protection as an endangered species. The legislature’s determination that a law is generally important
is not a determination that the law must be applied in this particular
circumstance.
Brief of amici curiae, at 7, filed February 21, 2003, Reproduced as
Appendix 3.
Thus, given the
Congressional intent embodied in RFRA, the burden that RFRA places on the
government, and the failure by the government to introduce any substantial
evidence to substantiate a compelling interest in criminalizing UDV’s conduct,
it was not surprising that the district court preliminarily enjoined the
government from further interfering with UDV’s religious conduct or that both a
panel of the Tenth Circuit Court of Appeals and the Tenth Circuit en banc affirmed.
Notwithstanding RFRA’s
clear command, and notwithstanding the government’s failure to demonstrate any
compelling interest in criminalizing UDV’s conduct, the government has until
now managed to subvert Congress’s intent by obtaining two “emergency” stays of
the district court’s preliminary injunction, once in the Court of Appeals and
once before this Court. The government
has accomplished this by seeking their stays at the last possible minute and
arguing that a parade of horribles will ensue if a higher court does not step
in to prevent the 140 members of UDV from practicing their religion.[11] In this last-minute application for a
so-called emergency stay, the government again mischaracterizes the law,
misrepresents the record evidence, ignores factual findings made below, and
hyperbolically reargues factual issues it either lost or failed to develop
below.
ARGUMENT
“The principles that control a Circuit
Justice’s consideration of in-chambers stay applications are well
established.” Rostker v. Goldberg,
448 U.S. 1306, 1308 (1980) (Brennan, J.).
An applicant is entitled to a stay “only in those extraordinary cases
where the applicant is able to rebut the presumption that the decisions
below–both on the merits and on the proper interim disposition of the case–are
correct.” Id. To overcome this presumption of correctness,
the government must make “a four-part showing”
Id. First, the government
must “establish[] that there is a reasonable probability that four Justices
will consider the issue sufficiently meritorious to grant certiorari or to note
probable jurisdiction.” Id.
(internal quotations, and quoted authority omitted). Second, the government must show “that there is a fair prospect
that a majority of the Court will conclude that the decision below was
erroneous.” Id. Third, the government must demonstrate “that
irreparable harm is likely to result from the denial of the stay.” Id.
Finally, “in a close case it may be appropriate to balance the equities
--to explore the relative harms to applicant and respondent, as well as the
interests of the public at large.” Id. For the reasons explained below, the
government has not made this showing and has not rebutted the presumption that
the district court and the Tenth Circuit correctly concluded that UDV is
entitled to preliminary injunctive relief, and that no stay should issue to
delay that relief.
I. THIS COURT SHOULD DEFER TO
THE DISTRICT COURT AND THE TENTH CIRCUIT COURT OF APPEALS, BOTH OF WHICH DENIED
THE GOVERNMENT’S STAY REQUESTS.
When applying the
four-part test governing stays, the Justices of this Court have given
considerable deference to the conclusions of the lower courts regarding the
need to stay the implementation of their own decisions. See Ruckelshaus v. Monsanto,
463 U.S. 1315, 1316 (1983) (Rehnquist, J.) (“a district court’s conclusion that
a stay is unwarranted is entitled to considerable deference”); Rostker, 448 U.S. at 1308 (noting
that there is a “presumption that the decisions below–both on the merits and on
the proper interim disposition of the case–are correct”); Holtzman v.
Schlesinger, 414 U.S. 1304, 1314-1315 (1973) (Marshall, J.) (giving “great
weight” to a decision of the Second Circuit, which “carefully considered the
issues presented and unanimously concluded that a stay was appropriate,” and
concluding that the Second Circuit did not abuse its discretion); Graves v.
Barnes, 405 U.S. 1201, 1203-04 (1972) (Powell, J.) (noting that Justices
“have also weighed heavily the fact that the lower court refused to stay its
order pending appeal, indicating that it was not sufficiently persuaded of the
existence of potentially irreparable harm as a result of enforcement of its
judgment in the interim”). Such
deference is especially appropriate where, as here, the analyses of the lower
courts are largely fact driven, see Block v. North Side Lumber,
473 U.S. 1307, 1307 (1985) (Rehnquist, J.) (denying application for stay
because applicant could not justify disturbing lower courts’ resolution of a
“highly factual issue”), and resolve “complex [] and importan[t] issues,” Holtzman,
414 U.S. at 1314.
In this case, after
carefully considering all of the evidence, the district court found that the
preliminary injunction would not harm the government and therefore
decided not to stay the injunction:
The Plaintiffs correctly argue that
the Defendants have not shown that the United States will suffer from any
irreparable injury if the [1971] Convention is violated. The Plaintiffs note that the Defendants are
merely speculating that the United States’ reputation as a leader in the war on
drugs will be “tarnished.” Moreover,
the detailed provisions of the Preliminary Injunction adequately address the
Defendants’ concerns regarding the health risks of the UDV members and
potential diversion. The Court,
therefor, concludes that the Defendants have failed to show that they will
suffer from irreparable injury if the Preliminary Injunction is not stayed
pending appeal.
UDV v. Ashcroft, Mem. Op. and Order (D.N.M. Dec. 2, 2002),
Appendix 2, at 6. Relying on the same
imagined emergency the government is repeating here, the government rushed to
two judges of the Tenth Circuit and persuaded them that a parade of horribles
would commence immediately without a stay of the preliminary injunction. Although those two judges stayed the
district court’s injunction, and that stay remained in place until the entire
court decided the government’s appeal, the Tenth Circuit eventually vacated its
stay, and refused the government’s application for another stay pending
petition for certiorari. See
Appendix D to Application.
Both of the lower courts
were better situated to determine the need for a stay than is this Court;
therefore, this Court should defer to their conclusions that a stay is
unwarranted. The district court denied
the stay after a full evidentiary hearing and months of briefing. After evaluating the thorough and thoughtful
opinion of the district court and the extensive briefing by the parties, the
Tenth Circuit ultimately agreed. This
Court should not substitute its judgment for theirs particularly where, as
here, a continuation of the stay will necessarily have the effect of further
depriving the UDV and its members of rights enshrined in the First Amendment
and codified in RFRA.
II. THIS CASE DOES NOT PRESENT
THE COURT WITH AN OPPORTUNITY TO RESOLVE A CONFLICT AMONG THE CIRCUITS.
Contrary to the
government’s argument, the Tenth Circuit’s en
banc decision does not conflict with the decisions of other federal
appellate courts. The government argues
that because other courts, pre-RFRA, refused to create religious exceptions for
the use by other persons of other controlled substances, the Tenth Circuit’s
decision in this case is at odds with those other circuits. Application at 20-21. That is incorrect. The cases the government cites involved controlled substances
that presented significant risks of diversion and, in many cases, religions
that were not bona fide or involved
claims that were patently absurd.[12]
Both the district court and the Tenth
Circuit correctly rejected the argument that the decisions the government cites
comprise a body of contrary case law. See
UDV, 342 F.3d at 1184 (“The district court correctly distinguished, on
two grounds, cases cited by the Government denying individuals’ free exercise
challenges to drug laws. First, the
sincerity of the Uniao do Vegetal’s faith and the substantial burden the CSA
imposes on the practice of the religion are uncontested. By contrast, Courts in the other RFRA cases
cited by the Government have found the plaintiff’s beliefs are not religious,
are not sincerely held, or are not substantially burdened by governmental action.”);
Id. at 1185 (“As the D.C. Circuit observed in acknowledging the legality
of Native American Church’s use of peyote but refusing to grant a religious
exemption to marijuana, Uniao do Vegetal’s use of hoasca occurs in a
‘traditional, precisely circumscribed ritual’ where the drug ‘itself is an
object of worship’ and using the sacrament outside the religious context is a
sacrilege.” (internal quotation marks and quoted authority omitted.)). As is shown by reading the decisions below
and comparing them with the earlier cases on which the government rely to posit
a conflict in the circuits, the differences in outcomes are fact-specific, and
none of them reflect even trivial differences in the legal standards
applied. Accordingly, there is no
conflict among the circuits. Wisconsin
Electric Co. v. Dumore Co., 282 U.S. 813 (1931) (dismissing writ of
certiorari as improvidently granted where it appeared “that the asserted
conflict in decisions arises from differences in states of fact, and not in the
application of a principle of law”).
The government has
nevertheless argued, both here and below, that these pre-RFRA, inapposite
cases, were somehow incorporated into RFRA when Congress passed RFRA and
incorporated “pre-Smith” decisional law.
But Congress made clear that its purpose in enacting RFRA was to restore
the legal standard applied in pre-Smith decisions, not to reinstate
actual outcomes. See S. Rep. No.
103-111, at 9, reprinted in 1993 U.S.C.C.A.N. 1892, 1898 (1993). Nothing in RFRA or its legislative history
suggests that members of the UDV should be prohibited from practicing their
religion simply because a different plaintiff, with different claims, involving
a different controlled substance, and no bona
fide religious beliefs, lost a free exercise case twenty years ago. A far better analog is the Native American
Church, which uses a different Schedule I substance in its religious rituals,
but which is for all intents and purposes indistinguishable from the UDV under
any principled application of RFRA’s compelling interest test.[13]
The only utterance, by any
member of this court, that supports the government’s legal position in its
application for stay, is by Justice O’Connor in Smith, where she states
her view that the government always has a compelling interest in “prohibiting
the possession of peyote by its citizens.” Application at 21, quoting Employment
Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 907 (O’Connor, J.,
concurring in judgment). Justice
O’Connor is the sole member of this Court to make such a statement and
Congress, in making RFRA’s burden
applicable to “all Federal law,” 42
U.S.C. § 2000bb-3, rejected any suggestion that controlled substances were to
be beyond RFRA’s burden-shifting.
In sum, the government has
no more demonstrated a conflict in the circuits respecting free exercise claims
under RFRA than would a litigant who came before this Court to claim a
“conflict in the circuits” because juries had reached different verdicts in
cases involving only vaguely-related subject matter. The government has pointed to no case in any circuit in which a
court applied a different legal standard to a RFRA claim, or a pre-Smith
First Amendment claim. The government is only quibbling with the fact findings
of the district court, and packaging those quibbles in the camouflage of a
supposed conflict in the circuits.
III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION BY ISSUING A
PRELIMINARY INJUNCTION.
An appellate court reviews a district court’s
grant or denial of a preliminary injunction for abuse of discretion. Ashcroft v. ACLU, 124 S. Ct. 2783,
2790 (2004). The district court’s
findings of fact are not disturbed on appeal unless “clearly erroneous.” Cooper Indus., Inc. v. Leatherman Tool
Group, Inc., 532 U.S. 424, 440 n.14 ( 2001). Even “[w]here there are two permissible views of the evidence,
the factfinder's choice between them cannot
be clearly erroneous.” Anderson v. Bessemer City, 470 U.S. 564, 574
(1985) (emphasis added). For the
reasons explained below, this Court is unlikely to hold that the district court
abused its discretion by issuing a preliminary injunction.
A. The District Court’s Findings Regarding the Absence of a
Compelling Interest Are Not Clearly Erroneous.
The district court concluded that “[t]he
Government has not shown that applying CSA’s prohibition on DMT to the UDV’s
use of hoasca furthers a compelling interest.”
UDV, 282 F. Supp. 2d at 1255.
In support of this conclusion, the district court found that the
government (1) failed to prove that “hoasca poses a serious health risk to the
members of the UDV who drink the tea in a ceremonial setting,” and (2) failed
to prove that “permitting members of the UDV to consume hoasca would lead to
significant diversion of the substance to non-religious use.” Id. The government’s disagreement with these
factual findings neither diminishes their significance nor renders them
“clearly erroneous.” Cooper Indus.,
532 U.S. at 440 n.14. Indeed, even if
this Court were to conclude that there were “two permissible views of the
evidence,” the district court’s choice of one over the other “cannot be clearly erroneous.” Anderson, 470 U.S. at 574 (emphasis
added). It follows that the district
court’s findings are dispositive with respect to the health and safety and
diversion concerns the government contended were compelling.
The district court’s
finding that the evidence relating to health and safety was “in equipoise” does
not aid the government. RFRA places on
the government the burdens of production and of persuasion, see 42
U.S.C. §2000bb-2(3), and the district court found that the government failed to
carry its burden of persuasion here.
Because the “the evidence is evenly balanced,” the government “must
lose.” Director, Office of Workers’
Compensation Programs v. Greenwich Colleries, 512 U.S. 267, 281 (1994).
Even if UDV were to
concede (which it does not) that the district court’s finding of “evidentiary
equipoise” should be taken to mean that the government almost proved a
compelling interest (which it did not, and which the district court did not
suggest it had), the government could not prevail. Under its decision in Ashcroft v. ACLU, this Court should
leave the preliminary injunction in place and allow the district court to
conduct a trial on the merits. In Ashcroft,
this Court, applying strict scrutiny, addressed the proper appellate treatment
of a preliminary injunction, separately addressing a hypothetical case where
the issue below is “close.” The
district court in Ashcroft had issued a preliminary injunction after
finding that the government failed to demonstrate a compelling interest and the
adoption of least restrictive means in defending government action that
impacted free speech. This Court held
that even if the question “is close,” this Court “should uphold the [district
court’s preliminary] injunction and remand for trial on the merits.” Ashcroft, 124 S. Ct. at 2791. That holding leaves no doubt that it would
be inappropriate and unwise for this Court to delay the injunctive relief the
lower courts concluded UDV is entitled to under RFRA.
B. The
Legislative Findings Supporting the Controlled Substances Act Are Not Adequate
Evidence Under RFRA of a Compelling Governmental Interest.
The government incorrectly
argues that legislative findings regarding controlled substances are
sufficient, standing alone, to satisfy the government’s compelling
interest/least restrictive means burden.
Application at 24-27. As the
Tenth Circuit panel correctly found, because RFRA applies to all federal laws,
the government must demonstrate a compelling interest as to all such laws that
substantially burden the exercise of sincerely held religious beliefs. “[R]ecitation of the criteria for listing a
substance on CSA Schedule I and of the general danger of hallucinogens does
not, in this record, evince a compelling government interest under RFRA. . . . The Government ‘failed to build an
adequate record’ demonstrating danger to Uniao do Vegetal members’ health from
sacramental hoasca use.” UDV,
342 F.3d at 1181-82 (citation omitted).
Furthermore, Congress enacted RFRA to provide clear statutory protection
for religious practice in light of this Court’s decision in a case involving
the religious use of Schedule 1 controlled substances, Employment Division,
Dep’t of Human Resources v. Smith, 494 U.S. 872 (1990), and Congress made
no exception in RFRA for the religious use of controlled substances. Accordingly, it is disingenuous for the
government to suggest that the mere fact that this case involves a tea
containing an allegedly controlled substance is sufficient to establish a
compelling interest. The same could be
said of any federal act and, if the courts concurred, RFRA would become
meaningless.
C. The
Government Has No Abstract Compelling Interest In Enforcing the Controlled
Substances Act Against UDV.
The government’s argument
that a stay is necessary to protect the right of the government to prosecute
violators of generally-applicable criminal laws ignores the irreparable harm
that the members of UDV are undeniably suffering[14] and elevates
to irreparable status harm to the government that this Court has never
recognized as such, at least in a context like this one. As this Court made clear in Ashcroft,
the government’s criminal “enforcement choices” do not constitute a valid
reason for withholding preliminary injunctive relief even if the issue
were “close.” 124 S. Ct. at 2794. In Ashcroft
this Court explained that if the price of protecting free speech was enjoining
prosecutions pending a hearing on the merits, that was a small price to
pay. “The starch in our constitutional
standards cannot be sacrificed to accommodate the enforcement choices of the
Government.” Id. (quoting United
States v. Playboy Entertainment Group, 529 U.S. 803, 830 (2000)). Here, unlike in Ashcroft, the
government is not enjoined from prosecuting everyone who violates any portion
of the Controlled Substances Act. The
government is only enjoined from prosecuting members of a small religious
group, which has proven in court that their religious practices are not harmful
to themselves or anyone else. The
injunction in this case is, in fact, the very type of relief Congress
contemplated would be available to a group such as the UDV in the event that
the government failed to prove its compelling interest. In short, the government has failed to put
any starch whatsoever in its claim that it will be irreparably harmed without a
stay. See Rubin v. United States, 524 U.S. 1301
(1998) (Rehnquist, J.) (“An applicant for stay first must show irreparable harm
if a stay is denied.”).[15]
Between the lines of the
government’s arguments is the proposition that while the application of RFRA to
other areas of the law may be appropriate, it would be a mistake to take RFRA
literally in the context of its application to the Controlled Substances Act or
to a treaty. This, at least, is the
clear implication of the government’s arguments that this Court should 1) give
presumptive deference to Congress’s “findings” regarding controlled substances;
2) take judicial notice of the government’s compelling interest in the “uniform
application” of the CSA; and 3) take judicial notice that the government has a
compelling interest in adhering to the provisions of a treaty that it claims
forbids the government from permitting the importation of hoasca. Only because it failed to carry its RFRA
evidentiary burden below, with respect to the issues it chose to litigate, does
the government now argue that its compelling interests should be presumed, rather
than proved. The government is, of
course, free to put on evidence during a hearing on the merits to support its
assertions, but it is hardly consistent with either the spirit or letter of
RFRA to allow the government to “demonstrate” these compelling interests by
arguing them on appeal with abstract arguments about its needs.
Even if it were
appropriate for the government to make these arguments on appeal–rather than
prove, in the district court, that it has a compelling interest–these arguments
are contrary to RFRA. Congress was
fully aware when it passed RFRA that its provisions would apply to controlled
substances. It made RFRA applicable to
all federal law, and it understood that the issue of the religious use of
controlled substances, including Schedule I controlled substances, would be
subject to the provisions of RFRA. See
H.R. Rep. No. 88, 103d Cong., 1st Sess, at 5 (May 11, 1993)
(recognizing that states[16]
could refuse to permit the use of peyote, but any such restriction would be
subject to the RFRA balancing test).
Significantly, the same House Report’s discussion of the religious use
of peyote by the Native American Church includes the following statement: “In
terms of the specific issue addressed in Smith, this bill would not
mandate that all states permit the ceremonial use of peyote, but it would
subject any such prohibition to the aforesaid balancing test.” Id.[17]
Finally, in arguing that
the courts must presume that the uniform enforcement of criminal laws and the
enforcement of an allegedly-applicable treaty are compelling interests, the
government completely ignores RFRA’s major concern, that there is a “vital
public interest in protecting a citizen’s free exercise of religion.” UDV, 2004 WL 2569531, at *31
n.6. By its express terms, RFRA is
intended to preclude the enforcement of any
law that substantially burdens the exercise of religion, unless a finder of
fact determines that the government has “demonstrated” that it has a compelling
interest and the adoption of least restrictive means. 42 U.S.C. §2000bb-3(a).
In this case, the district court held the very type of hearing Congress
required in passing RFRA, made the type of factual determinations that Congress
required district courts to make in applying RFRA, and, on the basis of those
factual findings, provided the UDV with “appropriate relief against [the]
government,” as RFRA requires. 42
U.S.C. §2000bb-1©. The district court
carefully did its job under RFRA and the best that can be said of the
government’s position in its application for stay is that the government
doesn’t like the outcome or doesn’t like RFRA, or both.
D. The
1971 Convention Does Not Apply to Hoasca, and Even if it Did, the Government
Has Failed to Show that Anyone Will Suffer Irreparable Harm If Plaintiffs Are
Permitted to Import Hoasca for Ceremonial Use.
The government’s treaty
argument is entirely meritless. The
government asserts that the preliminary injunction requires the government to
violate the 1971 Convention. Application at 3. The government is wrong because (1) the 1971 Convention does not
apply to hoasca; (2) even if the treaty did apply to hoasca, the government has
not carried its burden under RFRA of establishing a compelling interest in
upholding this treaty specifically as to UDV; and (3) the 1971 Convention
contains its own language that accommodates adherence to laws such as RFRA.
1. The
1971 Convention Does Not Apply to Hoasca.
Below, UDV attempted to
put on evidence that the 1971 Convention on Psychotropic Substances did not
apply in any respect to UDV’s religious use of hoasca. The government objected to, and
successfully excluded from the hearing, any evidence relating to this issue on
the grounds that this was not one of the issues on which the court requested
evidence. UDV, 2004 WL 2569531,
at *13.
Because RFRA applies to
“all federal law . . . whether statutory or otherwise,” 42 U.S.C. §
2000bb-3(a), it requires that government “demonstrate,” by “building a record,”
United States v. Hardman, 297 F.3d 1116, 1130 (10th Cir. 2002) (en
banc), why the 1971 Convention must be applied to the UDV and its members. The government did not offer any evidence
below to support such an assertion and objected to any effort by UDV to address
this issue during the evidentiary hearing. It follows that the government,
which has not built any evidentiary record, cannot have met its burden, as both
the Tenth Circuit panel and the en banc courts found. UDV, 2004 WL 2569531, at *2; UDV, 342 F.2d at 1184.
After the district court
found that the treaty did not apply to hoasca, the government complained for the first time that it had no
opportunity to present evidence on this issue in its motion to that court
requesting a stay of its injunction. In
that motion, the government resurrected two cursory declarations it had
submitted in opposition to the initial application for preliminary injunction
to support its argument that it had now met its burden under RFRA of showing a
compelling interest. The district court
denied the request to stay the injunction, finding, inter alia, the declarations unpersuasive and holding that the
“Court is not obliged to accept an agency interpretation which is unreasonable.
. . . [and] the Court is not required to give due deference to an agency’s litigation
position if that position is not a long-standing agency view.” Appendix 2 at 3.
When the government next
sought a stay from the Tenth Circuit using the same declarations that had
suddenly appeared as “evidence” on the treaty issue, the UDV responded with the
declaration of Ambassador Herbert S. Okun.
Appendix 4. Ambassador Herbert
Okun is the diplomat who was responsible for representing the United States’
position on this treaty on the International Narcotics Control Board (INCB).
The government continues
here its previous pattern of falsely asserting that the evidence it fought so
hard to exclude was “nothing more than a private letter written decades after
the Convention by one member of the International Narcotics Control Board–a
body that has no official role in interpreting the terms of the Convention.”
Application at 32, n.3. In fact, the
evidence was a letter from Mr. Schaepe, the Executive Secretary to the
INCB. It was the formal response of the
INCB to a specific formal request from the Ministry of Health of the
Netherlands regarding the legal status under the Convention of the same tea at
issue in the instant case. The response
could not have been more clear: “No plants (natural materials) containing DMT
are at present controlled under the 1971 Convention on Psychotropic
Substances. Consequently, preparations
(e.g. decoctions) made of these plants, including ayahuasca are not under international control and, therefore, not
subject to any of the articles of the 1971 Convention.” Appendix 4, Exhibit B.
As Ambassador Okun
explained–and contrary to the government’s misrepresentation–the INCB is
the principal authority in interpreting all the international drug treaties.
The opinion of Ambassador Okun, the Executive’s chosen representative for ten
years to the INCB, affirming the position stated in the INCB executive
secretary’s letter–that the Convention does not cover preparations such
as hoasca–undeniably carries more weight than the “speculative testimony” of a
lawyer in the State Department that falls significantly short of the “hard
evidence” this Court requires of a defendant under RFRA. See Ashcroft, 124 S. Ct. at
2794 (upholding preliminary injunction against enforcement of Child Online
Protection Act where there was “serious gap in the evidence as to the
effectiveness of” less restrictive alternatives); Sable Communications v.
FCC, 492 U.S. 115, 130 (1989) (dismissing conclusory statements that a
complete ban on dial-a-porn messages was necessary to protect children because
"the congressional record ... contain[ed] no evidence as to how effective
or ineffective" less restrictive alternatives would be); see also
UDV, 2004 WL 2569531 at *45 (noting that “[the Dalton] affidavit does
not provide any information specific enough to be relevant in assessing the
damage that would flow from an exemption for the UDV” and that it made “no
mention of whether the International Narcotics Control Board deems hoasca to be
within the Convention or whether there may be ways to comply with the Convention
without a total ban”).
2. Protection of UDV’s Religious Practices Will Not
Irreparably Harm the Government Because The Treaty Does Not Apply to Hoasca.
That the INCB executive
secretary–after consultation with both the Scientific Section and the Legal
Advisory Section of the United Nations office in charge of drug control–and the
former U.S. member of the agency in charge of monitoring and implementing the
Convention do not interpret the Convention to apply to hoasca fatally undercuts
the government’s unsupported argument that the United States' "leadership
role" will be undone in the eyes of the other signatory nations if it
ignores its supposed treaty obligations.[18] It further appears that of all the nations
who are parties to the Convention, only these government defendants, in the
litigation posture they have adopted in this case, purport to believe it
applies to hoasca.
The government has
repeated like a mantra its contention that “the 160 Nations” that are parties
to the 1971 Convention share the government’s view, Application at 20, but the
record is devoid of evidence to support that contention. No other country has
interpreted the 1971 Convention to include hoasca, and Brazil–the country where
hoasca originates and an original party to the 1971 Convention–has long allowed
the use of hoasca for religious purposes.
In short, the government has presented no evidence that if UDV’s
ceremonial use of hoasca were protected under RFRA, that the standing of the
United States among nations would be gravely injured.
3. Even if the 1971 Convention Applies to Hoasca, It Allows
the Government to Adhere to RFRA.
The Convention explicitly
permits countries to decline to apply its provisions if those provisions
conflict with that country’s domestic laws.
1971 Convention, Art. 22. Even
if a court were to decide that the 1971 Convention does apply to hoasca, but
that RFRA requires a particular religious use to be excepted, the Convention
anticipates and accommodates such exceptions.
The plain language of the treaty–on which the government claims the
courts must rely–could not be more clear: It states that its provisions are
“[s]ubject to the constitutional limitations of a Party, its legal system and
domestic law.” Art. 22, 1971
Convention.
Accordingly, the analysis
is the same as it is for the applicability of the CSA to UDV. The government must prove that it has a
compelling interest in abiding by the Convention, and that there is no less
restrictive means of achieving that interest.
If the government fails to make those showings, the Convention presents
no separate bar to the accommodation of UDV’s religious practice.
E. The
Government Has Failed to Establish that it Will Suffer Irreparable Harm if a
Stay is Not Issued, and Even if the Court Concludes Otherwise, the Balance of
Equities Favors Denying the Stay Application.
As explained above in the
opinions of the lower courts, the government has failed to establish that the
denial of a stay will result in irreparable harm to the government or anyone
else, including the members of the UDV, and both courts below have held that
UDV and its members are presently suffering irreparable harm. For the reasons set forth earlier in this
memorandum, UDV respectfully submits that the government has failed to show
that it is likely to persuade this Court either to grant certiorari or to
reverse. If the Circuit Justice
considering the present motion considered this to be a close question, however,
then it would be appropriate to weigh the equities in considering whether a
stay should be granted. Rostker,
448 U.S. at 1308. Given what is at
stake for the two sides of this dispute, UDV respectfully submits that the
balance is not a close one and that UDV and its members are suffering far
greater, genuinely irreparable harm, than are the government defendants.
The government insists,
however, that it will suffer irreparable harm without a stay, simply because it
will be enjoined from prosecuting the plaintiffs. Application at 32. As UDV has repeatedly pointed out above,
however, such an argument is not only contrary to the structure of RFRA, but is
contrary to this Court’s recent holding in Ashcroft v. ACLU, in which
this Court explicitly held that even a blanket
ban on criminal prosecutions (as opposed to the ban in this case, which would
only protect members of the UDV) does not constitute irreparable harm.
The government, however,
insists that interfering with its prosecutorial authority will irreparably harm
it, relying heavily on two opinions by Chief Justice Rehnquist–New Motor
Vehicle Bd. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist,
J.), and Turner, 507 U.S. 1301, 1302 (1993) (Rehnquist, C.J.) – for the
proposition that irreparable harm automatically occurs whenever a court
temporarily enjoins a government from enforcing its statutes. Application at 32- 33. But New Motor Vehicle and Turner
are inapplicable here because they did not involve RFRA and involved
applications to stay orders enjoining the government from enforcing “presumptively
valid Act[s] of Congress,” Turner,
507 U.S. at 1302, on constitutional grounds. Those cases have no force where, as here,
the injunction resolves the tension between two pieces of federal legislation–both
of which are “presumptively valid,” Turner,
507 U.S. at 1302–in the very way that Congress required their resolution when
it passed RFRA. Indeed, under the
government’s interpretation of Turner and New Motor Vehicle,
UDV’s or the government’s inability
to enforce RFRA, another presumptively valid statute, would also constitute
irreparable harm, justifying the denial of a stay.
Second, the government
argues that it will suffer irreparable harm because “DMT is not produced . . .
domestically,” so that leaving the injunction in place pending a trial on the
merits “would forcibly introduce a
hazardous hallucinogenic substance into the Country.” Application at 33. But
UDV proved that many plants contain DMT– including a grass the Department of
Agriculture recommends for roadside erosion control – grow throughout the
United States and could be easily used to make a DMT-containing tea. But they are not sacred to the UDV’s
members. See UDV, 282 F.
Supp. 2d at 1247 (“During the hearing, the Plaintiffs presented evidence
showing that certain plants growing in this country, including phalaris grass,
contain DMT. The Plaintiffs' evidence included a document showing that the
United States Department of Agriculture even recommends using one kind of
phalaris for erosion control.”). This
and the government’s other misstatements in its application confirm the wisdom
of deferring to the lower courts, both of which refused to stay their
decisions, based on their careful and thorough review the complex and
voluminous record .
Because the government’s
irreparable harm arguments are without merit, the government is not entitled to
a stay, see, e.g., Ruckelshaus,
463 U.S. at 1316 (denying a stay
should be denied “if the applicant fails to show irreparable injury from the
denial of the stay”).
On the other arm of the
scales are the UDV and its members.
They have not been able to practice their religion since May, 1999, when
the government seized their sacramental hoasca and threatened to prosecute them
if they continued their religious practice. The celebration of the birth of
Jesus is considered to be the highest and most revered of the annual Holy Days
commemorated within the UDV. If the
government's request for a stay is granted this will be the fifth year the UDV
will not be permitted to offer communion services to its adherents. Despite
decisions by the district court and two by the Tenth Circuit Court of Appeals,
in which those courts determined that this small religion was entitled to
judicial relief, the government has unconstitutionally continued to use their
considerable powers to deny the UDV the first of all freedoms memorialized in
our constitution’s Bill of Rights, and codified in RFRA.
Because the government has
failed to make the requisite showing of irreparable harm, it is unnecessary to
determine whether it would be likely to succeed in this Court. See Ruckelshaus v. Monsanto, 463 U.S. at 1316 (“An applicant’s likelihood of success
on the merits need not be considered, however, if the applicant fails to show
irreparable injury from the denial of the stay.”).
CONCLUSION
For the foregoing reasons,
UDV and its members and representatives respectfully request that the Court
deny the government’s emergency stay application.
Respectfully
submitted,
FREEDMAN BOYD DANIELS
HOLLANDER & GOLDBERG P.A.
By:__________________________
Nancy
Hollander
Counsel of Record
John
W. Boyd
Zachary
A. Ives
20
First Plaza, Suite 700 (87102)
P.O.
Box 25326
Albuquerque, NM 87125
(505) 842-9960
Attorneys for O Centro
Espirita Beneficiente Uniao Do Vegetal, et al.
CERTIFICATE OF SERVICE
I
certify that on the 3rd day of December, 2004, this memorandum in opposition to
the government’s emergency application for a temporary stay was filed via
e-mail with the Clerk of the Supreme Court to Troy Cahill, Supreme Court Staff
Attorney (Tcahill@scus.gov and tcahill@sc-us.gov), and served via e-mail upon the Solicitor General (supremectbriefs@usdoj.gov) and Rebecca Smith-Jackson (Rebecca.Smith-Jackson@usdoj.gov.
_________________________________
Nancy Hollander
O CENTRO ESPIRITA BENEFICIENTE UNIAO DO VEGETAL, also known as Uniao do Vegetal (USA), Inc., a New Mexico corporation on its own behalf and on behalf of all its members in the United States; JEFFREY BRONFMAN, individually and as President of UDV-USA; DANIEL TUCKER, individually and as Vice-President of UDV-USA; CHRISTINA BARRETO, individually and as Secretary of UDV-USA; FERNANDO BARRETO, individually and as Treasurer of UDV-USA; CHRISTINE BERMAN; MITCHEL BERMAN; JUSSARA DE ALMEIDA DIAS, also known as Jussara Almeida Dias; PATRICIA DOMINGO; DAVID LENDERTS; DAVID MARTIN; MARIA EUGENIA PELAEZ; BRYAN REA; DON ST. JOHN; CARMEN TUCKER; SOLAR LAW, individually and as members of UDV-USA, Plaintiffs-Appellees, v. JOHN ASHCROFT, Attorney General of the United States; ASA HUTCHINSON, Administrator of the United States Drug, Enforcement Administration; PAUL H. O'NEILL, Secretary of the Department of Treasury of the United States; DAVID C. IGLESIAS, United States Attorney for the District of New Mexico; DAVID F. FRY, Resident Special Agent in Charge of the United States Customs Service Office of Criminal Investigation in Albuquerque, New Mexico; all in their official capacities, Defendants-Appellants, CHRISTIAN LEGAL SOCIETY; THE NATIONAL ASSOCIATION OF THE EVANGELICALS; CLIFTON KIRKPATRICK, as the Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.); QUEENS FEDERATION OF CHURCHES, Amicus Curiae.
No. 02-2323
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
2004 U.S. App. LEXIS 23781
November 12, 2004, Filed
PRIOR HISTORY: [*1]
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO. (D.C. No. CIV-00-1647 JP/RLP).
COUNSEL: Gregory G. Katsas, Deputy Assistant Attorney General (David C.
Iglesias, Attorney General, Peter D. Keisler, Assistant Attorney General,
Michael Jay Singer, Attorney, Department of Justice and Matthew M. Collette,
Attorney, Department of Justice with him of the briefs), of the Department of
Justice, Washington, D.C., for Defendants-Appellants.
John W. Boyd (Nancy Hollander with him on the brief), of Freedom, Boyd,
Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, New Mexico for
Plaintiffs-Appellees.
Gregory S. Baylor, Nathan A. Adams, Kimberlee W. Colby, of Center for Law and
Religious Freedom, Christian Legal Society, Annandale, Virginia, filed an
amicus curiae brief on behalf of Plaintiffs-Appellees.
JUDGES: Before TACHA, Chief Judge,
SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, O'BRIEN,
McCONNELL, and TYMKOVICH, Circuit Judges. MURPHY, Circuit Judge, joined in full
by EBEL, KELLY, and O'BRIEN, Circuit Judges, and as to Part I by HARTZ,
McCONNELL, and TYMKOVICH, Circuit Judges, concurring in part and dissenting in
part. SEYMOUR, Circuit [*2] Judge, concurring McCONNELL.
OPINION:
ON REHEARING EN BANC
PER CURIAM.
I.
This matter is before the en banc
court to review issues emanating from the panel opinion in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342
F.3d 1170 (10th Cir. 2003). The panel affirmed a preliminary injunction,
granted under the Religious Freedom Restoration Act ("RFRA"), which
enjoined the United States from relying on the Controlled Substances Act
("CSA") and the United Nations Convention on Psychotropic Substances
("Convention") to prohibit the sacramental use of hoasca by Uniao do Vegetal and its
members (collectively "UDV"). This court granted rehearing to review
the different standards by which we evaluate the grant of preliminary
injunctions, and to decide how those standards should be applied in this case.
II.
The underlying facts relating to the parties and the issues are fully described
in the panel opinion and are therefore unnecessary to reiterate here. UDV
invoked RFRA, 43 U.S.C. § 2000bb-1, to obtain declaratory and injunctive relief
which would prevent the government from prohibiting UDV's [*3]
importation, possession, and use of hoasca
for religious purposes and from attempting to seize the substance or prosecute
individual UDV members. n1 After an evidentiary hearing, the district court
granted UDV's motion for a preliminary injunction pending a decision on the
merits. The government appealed that decision, the panel affirmed, and we
granted the en banc petition. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Hoasca is a liquid tea-like
mixture made from the plants psychotria viridis and banisteriposis caapi. These
plants are indigenous to Brazil. Psychotria viridis contains dimethyltryptamine
(DMT), which is listed on Schedule I of the CSA and the Convention.
n2 This court granted an emergency stay of the preliminary injunction pending
appeal. See O Centro Espirita v. Ashcroft, 314 F.3d 463 (10th Cir. 2002).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
III.
The en banc court is divided over the
outcome of this case. Nevertheless, a majority of the court has voted to
maintain a heightened standard for granting any of the three
historically [*4] disfavored preliminary injunctions. A different
majority has voted to affirm the district court's entry of a preliminary
injunction in this case.
A. Standards for Granting Disfavored
Preliminary Injunctions
In SCFC ILC, Inc. v. Visa USA, Inc.,
this court identified the following three types of specifically disfavored
preliminary injunctions and concluded that a movant must "satisfy an even
heavier burden of showing that the four [preliminary injunction] factors . . .
weigh heavily and compellingly in movant's favor before such an injunction may
be issued": (1) preliminary injunctions that alter the status quo; (2)
mandatory preliminary injunctions; and (3) preliminary injunctions that afford
the movant all the relief that it could recover at the conclusion of a full
trial on the merits. 936 F.2d 1096, 1098-99 (10th Cir. 1991). With one
important alteration, a majority of the en
banc court has voted to affirm the core holding of SCFC ILC. Part I of the Opinion of Murphy, J., joined by Ebel,
Kelly, Hartz, O'Brien, McConnell, and Tymkovich, JJ.; Part I of the Opinion of
McConnell, J, joined by Hartz, O'Brien, and Tymkovich, JJ. Thus, if a
movant [*5] seeks a preliminary injunction that falls into one of
the three categories identified in SCFC
ILC, the movant must satisfy a heightened burden. The en banc court does, however, jettison that part of SCFC ILC which describes the showing the
movant must make in such situations as "heavily and compellingly." SCFC ILC, 936 F.2d at 1098. Instead, the
en banc court holds that courts in
this Circuit must recognize that any preliminary injunction fitting within one
of the disfavored categories must be more closely scrutinized to assure that
the exigencies of the case support the granting of a remedy that is
extraordinary even in the normal course. Furthermore, because a historically
disfavored preliminary injunction operates outside of the normal parameters for
interim relief, movants seeking such an injunction are not entitled to rely on
this Circuit's modified- likelihood-of-success-on-the-merits standard. Instead,
a party seeking such an injunction must make a strong showing both with regard
to the likelihood of success on the merits and with regard to the balance of
harms, and may not rely on our modified likelihood-of-success-on-the-merits
standard.
[*6] B. Grant of Preliminary
Injunction in this Case
Although the reasons vary, a majority of the en banc court is of the view that the district court's entry of a
preliminary injunction in this case should be affirmed. Part II of Opinion of
Seymour, J., joined by Tacha, C.J., and Porfilio, Henry, Briscoe, Lucero,
McConnell, and Tymkovich, JJ.; Part II of the Opinion of McConnell, J., joined
by Tymkovich, J.
VI.
The decision of the United States District Court for the District of New Mexico
to grant UDV's request for a preliminary injunction is hereby AFFIRMED. The temporary stay of the
district court's preliminary injunction issued by this court pending resolution
of this appeal is vacated.
CONCURBY: SEYMOUR; McCONNELL
CONCUR: SEYMOUR, Circuit Judge,
concurring in part and dissenting in part, joined in full by TACHA, Chief Judge, PORFILIO, HENRY, BRISCOE, and LUCERO, Circuit Judges, and in Part II
by McCONNELL and TYMKOVICH, Circuit Judges.
Like a majority of my colleagues, I am persuaded that the district court did
not abuse its discretion in granting the preliminary injunction in this case. I
respectfully dissent, however, from the majority's [*7] conclusion
that the movant for a preliminary injunction must satisfy a heightened burden
when the proposed injunction will alter the status quo but the injunction is
not also mandatory.
I
It is well established that "[a] preliminary injunction is an
extraordinary remedy; it is the exception rather than the rule." GTE Corp. v. Williams, 731 F.2d 676, 678
(10th Cir. 1984). Its commonly asserted purpose is to "preserve the
relative positions of the parties until a trial on the merits can be
held." Univ. of Texas v. Camenisch,
451 U.S. 390, 395, 68 L. Ed. 2d 175 (1981). See
also 11A CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 2947
at 123 (2d ed. 1995) (purpose of preliminary injunction is to prevent
non-movant from taking unilateral action which would prevent court from
providing relief to the movant on the merits).
In making the equitable determination to grant or deny a preliminary
injunction, courts tend to balance a variety of factors. We have stated
generally that a court will grant preliminary relief only if the plaintiff
shows "(1) a substantial likelihood of success on the merits of the case;
(2) irreparable injury [*8] to the movant if the preliminary
injunction is denied; (3) the threatened injury to the movant outweighs the
injury to the other party under the preliminary injunction; (4) the injunction
is not adverse to the public interest." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). These
factors provide guideposts for a court in its attempt to minimize any harm that
would result from the grant or denial of preliminary relief. The manner by
which a court considers the factors, the relative weight given to each, and the
standards by which a movant is required to prove them, are driven by the
special and unique circumstances of any given case.
As noted by Professor Dobbs:
The gist of the standards is probably easy to understand in common sense terms
even if the expression is imperfect: the judge should grant or deny preliminary
relief with the possibility in mind that an
error might cause irreparable loss to either party. Consequently the judge
should attempt to estimate the magnitude of that loss on each side and also the
risk of error.
DAN B. DOBBS, LAW OF REMEDIES § 2.11(2) at 189 (2d ed. 1993) (emphasis added). American Hosp. Supply Corp. v. Hospital
Prods. Ltd., 780 F.2d 589 (7th Cir. 1986), [*9] epitomizes this
approach, noting that when a district court is
asked to decide whether to grant or deny a preliminary injunction [it] must
choose the course of action that will minimize the costs of being mistaken. . .
. If the judge grants the preliminary injunction to a plaintiff who it later
turns out is not entitled to any judicial relief - whose legal rights have not
been violated - the judge commits a mistake whose gravity is measured by the
irreparable harm, if any, that the injunction causes to the defendant while it
is in effect. If the judge denies the preliminary injunction to a plaintiff who
it later turns out is entitled to judicial relief, the judge commits a mistake
whose gravity is measured by the irreparable harm, if any, that the denial of
the preliminary injunction does to the plaintiff.
Id. at 593. Due to this inherently
fluid, multi-faceted, and equitable process, we review a district court's
decision to grant or deny injunctive relief for abuse of discretion. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). In so doing, we should keep in mind that the district judge had to
act in haste, that [*10] he had to balance factors which, though
they can be related in a neat formula, usually cannot be quantified, and that
in dealing with the parties and their witnesses and counsel in the hectic
atmosphere of a preliminary-injunction proceeding the judge may have developed
a feel for the facts and equities that remote appellate judges cannot obtain
from a transcript.
American Hosp. Supply Corp., 780 F.2d
at 594-95. Thus "it is not enough that we think we would have acted
differently in the district judge's shoes; we must have a strong conviction
that he exceeded the permissible bounds of judgment." Id. at 595.
A.
In SCFC ILC, we held that movants requesting
certain preliminary injunctions must meet a heightened standard instead of
satisfying the ordinary preliminary injunction test. We detailed that a party
who seeks an injunction which either changes the status quo, is mandatory
rather than prohibitory, or provides the movant with substantially all the
relief he would recover after a full trial on the merits, was required to
"show that on balance, the four [preliminary injunction] factors weigh
heavily and compellingly in his favor. [*11] " SCFC ILC, Inc., 936 F.2d at 1099
(emphasis added). We appear to be the only court which has adopted the specific
approach of carving out three distinct categories of disfavored injunctions.
Other courts have limited to two categories those preliminary injunctions
deserving special scrutiny: injunctions which are mandatory or which provide
the moving party with all the relief it seeks from a full trial on the merits. See, e.g., In re Microsoft Corp. Antitrust
Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, 60 F.3d 27, 34-35 (2d Cir.
1995); Acierno v. New Castle County,
40 F.3d 645, 653 (3d Cir. 1994); Wetzel
v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980); Anderson v. United States, 612 F.2d 1112, 1114-15 (9th Cir. 1980).
n1 In order to bring our jurisprudence in closer accord with these other
circuits, and because I am convinced it will cause less confusion to the
parties and the district court, I would limit our heightened standard to those
two categories of preliminary injunctions.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 I disagree with Judge McConnell's characterization of the cases I have cited
for the proposition that the other circuits limit their categories of
disfavored injunctions to those which are mandatory and those which provide the
movant with all the relief afforded on the merits. McConnell, J., op. at 6 n.4.
As noted above, no other circuit follows our approach of identifying three
categories of disfavored injunctions. Courts which speak of applying some form
of heightened standard to preliminary injunctions that alter the status quo
specifically define those types of injunctions as mandatory. See Tom Doherty Assocs. v. Saban Entm't,
60 F.3d 27, 33-34 (speaking broadly about applying a heightened standard to
preliminary injunctions that alter the status quo, id. at 33, but then immediately defining with more specificity the
two categories of disfavored injunctions as those which are mandatory, and
those which provide all the relief sought on the merits, id. at 34); see also In re
Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003)
("Mandatory preliminary injunctions [generally] do not preserve the status
quo . . . .") (alteration in original); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994)
("A party seeking a mandatory preliminary injunction that will alter the
status quo bears a particularly heavy burden in demonstrating its
necessity."); Wetzel v. Edwards,
635 F.2d 283, 286 (4th Cir. 1980) ("Mandatory preliminary injunctions do
not preserve the status quo and normally should be granted only in those
circumstances when the exigencies of the situation demand such relief."); Anderson v. United States, 612 F.2d
1112, 1114-15 (9th Cir. 1980) ("Mandatory preliminary relief, which goes
well beyond simply maintaining the status quo pendente lite, is particularly
disfavored.") (citations omitted). While Judge McConnell may disagree with
the manner by which I think courts should consider the question of status quo,
it cannot be said I am advocating an approach that is discordant from that
employed by other courts. To the contrary, by separating out and adding
injunctions that alter the status quo as a third category of disfavored
injunctions, it is the majority that is out of step. See generally DOUGLASS LAYCOCK, MODERN AMERICAN REMEDIES 450 (3d
ed. 2002); Thomas R. Lee, Preliminary
Injunctions and the Status Quo, 58 WASH. & LEE L. REV. 109 (2001).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*12]
In doing so, I do not denigrate the general notion that the purpose of a
preliminary injunction is to preserve the status quo between the parties
pending a full trial on the merits. But this general maxim should not be taken
merely at face value or become a goal in and of itself. Rather, the very
purpose of preserving the status quo by the grant of a preliminary injunction
is to prevent irreparable harm pending a trial on the merits. See, e.g., In re Microsoft, 333 F.3d at
525 ("The traditional office of a preliminary injunction is to protect the
status quo and prevent irreparable harm during the pendency of a lawsuit
ultimately to preserve the court's ability to render a meaningful judgment on
the merits."); Matzke v. Block,
542 F. Supp. 1107, 1113 (D. Kan. 1982) ("The purpose of a preliminary
injunction is two-fold: it protects the plaintiff from irreparable injury and
it preserves the court's ability to decide the case on the merits."); 11A
WRIGHT & MILLER, § 2947 at 121 ("a preliminary injunction is an injunction
that is issued to protect plaintiff from irreparable injury and to preserve the
court's power to render a meaningful decision after [*13] a trial on
the merits").
Given the essential role prevention of irreparable harm plays in the grant of
preliminary injunctive relief, n2 district courts should consider the question
of altered status quo in light of how it impacts the balance of harms between
the parties and the public interest, as well as considering what attendant
institutional costs may accompany the grant of such relief. As the Fifth
Circuit has said, "if the currently existing status quo itself is causing
one of the parties irreparable injury, it is necessary to alter the situation
so as to prevent the injury." Canal
Auth. of the State of Florida v. Callaway, 489 F.2d 567, 576 (5th Cir.
1974) (citations omitted). Other courts echo this refrain, noting that where
preserving the status quo will perpetuate harm against the moving party, an
order altering the status quo may be appropriate. See, e.g., Friends For All Children v. Lockheed Aircraft Corp., 241
U.S. App. D.C. 83, 746 F.2d 816, 830 n.21 (D.C. Cir. 1984); Crowley v. Local No. 82, Furniture &
Piano Moving, 679 F.2d 978, 995 (1st Cir. 1982), reversed on other grounds, 476 U.S. 526 (1984); [*14] see also 11A WRIGHT & MILLER § 2948
at 133-35. For these reasons, "the focus always must be on prevention of
injury by a proper order, not merely on preservation of the status quo." Canal Auth., 489 F.2d at 576. Thus a
court's examination of the status quo should occur during the process of
balancing the various interests and harms among the parties and the public.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 In the course of deciding whether to grant preliminary injunctive relief,
"courts have consistently noted that 'because a showing of probable
irreparable harm is the single most important prerequisite for the issuance of
a preliminary injunction, the moving party must first demonstrate that such
injury is likely before the other requirements for the issuance of an
injunction will be considered.'" Dominion
Video Satellite v. EchoStar Satellite Corp., 356 F.3d 1256, 1260-61 (10th
Cir. 2004) (quoting Reuters Ltd. v.
United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990), and listing
other cases). Without a showing of irreparable harm, there exists no
justification for granting the extraordinary remedy of injunctive relief prior
to trial because any other harm can be compensated for by damages at the end of
the trial.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*15]
B.
Our circuit currently employs three different standards when granting
preliminary injunctions. As a base line, we have articulated that a party's
right to injunctive relief must be "clear and unequivocal." See SCFC ILC Inc., 936 F.2d at 1098
(citing Penn v. San Juan Hosp., 582
F.2d 1181, 1185 (10th Cir. 1975)). At one end of the spectrum, we have applied SCFC ILC's "heavily and
compellingly" language to injunctions requiring heightened scrutiny. Id. at 1098-99. At the other end, we
have adopted a modified approach for the "likelihood of success on the
merits" aspect of the four part preliminary injunction test for certain
circumstances. Under this alternative approach, if the moving party establishes
that the last three factors of the test are in its favor, the party may
ordinarily satisfy the first factor by "showing that questions going to
the merits are so serious, substantial, difficult and doubtful as to make the
issue ripe for litigation and deserving of more deliberate investigation."
Federal Lands Legal Consortium v. United
States, 195 F.3d 1190, 1195 (10th Cir. 1999). Within this paradigm, and in
accordance [*16] with the principle that a preliminary injunction
should preserve the parties' positions to prevent irreparable harm and allow
the court to make a meaningful decision on the merits, the court's focus
properly remains on the balance of relative harms between the parties.
In general, "emphasis on the balance of [irreparable harm to plaintiffs
and defendants] results in a sliding scale that demands less of a showing of
likelihood of success on the merits when the balance of hardships weighs
strongly in favor of the plaintiff, and vice versa." In re Microsoft, 333 F.3d at 526. Thus, the more likely a movant is
to succeed on the merits, "the less the balance of irreparable harms need
favor the [movant's] position." Ty,
Inc. v. Jones Group, Inc., 237 F.3d 891, 895 (7th Cir. 2001). And,
alternatively, "if there is only slight evidence that plaintiff will be
injured in the absence of interlocutory relief, the showing that he is likely
to prevail on the merits is particularly important." Canal Auth., 489 F.2d at 576-77. The rationality of this approach
is evident: where there is a strong indication that the plaintiff is correct on
the [*17] merits, the less it is likely that the defendant will be
harmed by the issuance of a preliminary injunction; where there is little
likelihood a plaintiff will be irreparably harmed, preliminary relief is
unwarranted unless it is virtually certain plaintiff will win on the merits.
Given the special considerations and potential administrative costs at stake
when a court issues a mandatory preliminary injunction, we should more closely
scrutinize whether the irreparable harm to the movant substantially outweighs
any harm to the non-movant or to the public interest. The movant should clearly
show the exigencies of the situation justify the rather unusual injunction. See Tom Doherty Assocs., 60 F.3d at 34
("[A] mandatory injunction should issue only upon a clear showing that the
moving party is entitled to the relief requested, or where extreme or very
serious damage will result from a denial or preliminary relief." (internal
quotations omitted)); Anderson, 612
F.2d at 1114 (mandatory preliminary relief justified only where "facts and
law clearly favor the moving party" or where "extreme or very serious
damage will result"); In re
Microsoft, 333 F.3d at 525 [*18] (showing for preliminary
mandatory relief "must be indisputably clear"); Wetzel, 635 F.2d at 286 (mandatory preliminary injunctions
"should be granted only in those circumstances when the exigencies of the
situation demand such relief").
Although a mandatory injunction should be granted only where the moving party
makes a strong showing that all the preliminary injunction factors weigh in its
favor, we should abandon use of the "heavily and compellingly"
language employed in SCFC ILC, see 936 F.2d at 1098-99, which is not
used by any other circuit. In addition, because a party seeking the grant of a
mandatory preliminary injunction must make this stronger showing, the party
should not be able to rely on our circuit's modified likelihood of success on
the merits standard, even where the balance of harms favors the movant. Rather,
the movant for a mandatory preliminary injunction must also establish a
substantial likelihood of success on the merits. See Tom Doherty Assocs., 60 F.3d at 33-34 (party seeking mandatory
injunction cannot rely solely on circuit's relaxed likelihood of success on
merits standard); SCFC ILC, 936 F.2d
at 1101 n.11 [*19] (applicant for disfavored injunction unlikely to
satisfy higher standard without proving likelihood of success on merits).
The same is true for injunctions that provide the movant with all the relief
that could be obtained at trial. See SCFC
ILC, 936 F.2d at 1099 (applying heightened standard to preliminary
injunctions that provide the movant with all relief that could be obtained at
trial). In this context, however, the term "all the relief to which a
plaintiff may be entitled" must be
supplemented by a further requirement that the effect of the order, once
complied with, cannot be undone. A heightened standard can thus be
justified when the issuance of an injunction will render a trial on the merits
largely or partly meaningless, either because of temporal concerns, say, a case
involving the live televising of an event scheduled for the day on which
preliminary relief is granted, or because of the nature of the subject of the
litigation, say, a case involving the disclosure of confidential information.
Tom Doherty Assocs., 60 F.3d at 35
(emphasis added). See Prairie Band of
Potawatomi Indians v. Pierce, 253 F.3d 1234, 1249 (10th Cir.
2001) [*20] (citing Tom
Doherty Assocs. for this proposition). For example, while the preliminary
injunction here may give the UDV all the relief it would obtain after a full
trial on the merits, the district court's order can nonetheless be
"undone" should the UDV ultimately be unsuccessful at trial. This
situation is clearly different from the examples listed in Tom Doherty Assocs. Moreover, the grant of a preliminary injunction
in this case does not "make it difficult or impossible to render a
meaningful remedy," id., to the
government. If the UDV does not prevail at trial, the government will be able
to enforce the CSA against the church and its members and comply with the
Convention.
In sum, we should limit our categories of injunctions requiring greater
scrutiny to those which are mandatory or which afford the movant all the relief
it seeks after a full trial on the merits, and abandon the use of SCFC ILC's "heavily and
compellingly" language. In addition, a party seeking an injunction
requiring greater scrutiny may not rely on our relaxed "success on the
merits" standard but must make a strong showing that it has a likelihood
of success on the merits and that the balance [*21] of harms weighs
in its favor. However, I depart from my colleagues who hold that a heightened
standard should always be applied when the injunction will change the status
quo. Rather, district courts should assess alteration of the status quo in
light of its impact on the balance of harms among the parties and the public
interest.
II
Turning to the question of whether the district court properly granted the
preliminary injunction to the UDV, our court reviews the district court's grant
of injunctive relief for abuse of discretion and "examines whether the
district court committed error of law or relied on clearly erroneous fact
findings." Walmer v. U.S. Dep't of
Defense, 52 F.3d 851, 854 (10th Cir. 1995). We also give due deference
"to the district court's evaluation of the substance and credibility of
testimony, affidavits, and other evidence. We will not challenge that
evaluation unless it finds no support in the record, deviates from the
appropriate legal standard, or follows from a plainly implausible, irrational
or erroneous reading of the record." United
States v. Robinson, 39 F.3d 1115, 1116 (10th Cir. 1994).
The district court focused [*22] the majority of its analysis on
whether the UDV could satisfy the likelihood of success on the merits prong of
the preliminary injunction test. See
Kikumura, 242 F.3d at 955 (listing elements of preliminary injunction test). Because the government did not dispute
for the purpose of the injunctive proceeding that its enforcement of the CSA
and the United Nations Convention on Psychotropic Substances (Convention or
treaty) imposed a substantial burden on the UDV's sincere exercise of religion,
the UDV established a prima facie
case of a RFRA violation. See id. at
960. To undercut this showing of likelihood of success, the government had the
burden of establishing that "the challenged regulation furthers a
compelling interest in the least restrictive manner." See 42 U.S.C. § 2000bb-1(b); United
States v. Meyers, 95 F.3d 1475, 1482 (10th Cir. 1996).
The government proffered three compelling interests - risks to the health of
the UDV members by the use of hoasca,
risk of diversion of hoasca for non-
religious purposes, and compliance with the Convention. "Believing the
Government's strongest [*23] arguments for prohibiting Uniao do
Vegetal's hoasca use to be health and
diversion risks, the district court did not ask the parties to present evidence
on the Convention at the hearing." O Centro Espirita Beneficiente
Uniao Do Vegetal v. Ashcroft,
342 F.3d 1170, 1183 (10th Cir. 2003). After examining
the parties' evidence on the first two issues, the court found the evidence to
be in equipoise for each. The court also decided the treaty does not cover hoasca. The court therefore concluded
the government had "failed to carry its heavy burden of showing a
compelling interest in protecting the health of the UDV members using hoasca or
in preventing the diversion of hoasca to illicit use." O
Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1269 (D.N.M. 2002). Hence, the court ruled the UDV had demonstrated a substantial
likelihood of success on the merits.
The district court then turned to the remaining preliminary injunction factors
and determined the UDV satisfied each. The court found the UDV established
irreparable injury because its right to the free exercise of religion was being
impaired. With respect to [*24] harm to the government and the
balance of harms, the court held that
in balancing the government's concerns against the injury suffered by the
Plaintiffs when they are unable to consume hoasca in their religious
ceremonies, the Court concludes that, in light of the closeness of the parties'
evidence regarding the safety of hoasca use and its potential for diversion,
the scale tips in the [church's] favor.
Id. at 1270. The court granted a
preliminary injunction to the UDV pending a decision on the merits.
The government contends that the preliminary injunction granted by the district
court is mandatory and changes the status quo, and that the district court
erred in failing to require the UDV to make a stronger showing to succeed. I
disagree. This case is unique in many respects because it involves a clash
between two federal statutes, one based in the First Amendment to the
Constitution and protecting an individual's free exercise of religion and the
other serving the important governmental and public interests of protecting
society against the importation and sale of illegal drugs. This case also
serves as an example of how challenging it can be to determine [*25]
whether an injunction is mandatory as opposed to prohibitory, or whether it
alters the status quo.
I am not persuaded the injunction here is mandatory. Rather, it temporarily
prohibits the government from treating the UDV's sacramental use of hoasca as unlawful under the CSA or the
treaty. It also orders the government not to
intercept or cause to be intercepted shipments of hoasca imported by
the UDV for religious use, prosecute or threaten to prosecute the UDV, its
members, or bona fide participants in UDV ceremonies for religious use of
hoasca, or otherwise interfere with the religious use of hoasca by the UDV, its
members, or bona fide participants in UDV ceremonies . . . .
Aplt. br., Add. B at 2.
The government contends the injunction is mandatory because it includes
"36 separate provisions requiring specific affirmative action by the
government to facilitate the UDV's use of hoasca." Aplt. Supp. En Banc br.
at 20. In so arguing, the government fails to acknowledge that the additional
provisions were added to the injunction by the district court in response to
the government's insistence that the UDV be subject to some form of
governmental oversight [*26] in its importation and use of hoasca. In large measure, the
injunction's terms detail how the UDV must comply with the importation and
distribution regulations for controlled substances. The injunction outlines how
the regulations should be specifically construed regarding the UDV and lists
provisions from which the church should be exempted. The injunction's terms
also make clear that while the UDV is required to comply with the regulations,
the government cannot rely on potential technical violations of the regulations
by the church, or an overly broad reading of the regulations, to bar the UDV's
importation of hoasca. While the
order's terms do not exactly mirror those proposed to the court by the
government, nor are they nearly as broad as the government might have hoped,
they nonetheless are in the injunction because the government demanded the UDV
be subject to some form of regulatory control in the course of importing and
distributing hoasca. In this regard,
the order's terms outline how the church must comply with the regulations while
still protecting the church's importation and use of its sacrament.
Similarly, while some of the injunction's provisions mandate [*27]
that the parties take specific actions, the order is nonetheless properly
characterized as prohibitory. Read as a whole, the additional terms in the
order mandate that the UDV comply
with specific drug importation laws, while the provisions conversely permit the government to perform its
regulatory functions with respect to the importation of controlled substances,
up to but not including barring the UDV's use of hoasca for sacramental purposes. However, the overall effect of the
injunction is to prohibit the government from enforcing the CSA and the treaty
against the UDV.
There is no doubt that determining whether an injunction is mandatory as
opposed to prohibitory can be vexing. In Abdul
Wali v. Coughlin, the court recognized this difficulty but emphasized that
the distinction between mandatory and prohibitory injunctions, however, cannot
be drawn simply by reference to whether or not the status quo is to be maintained or upset. As suggested by the
terminology used to describe them, these equitable cousins have been
differentiated by examining whether the non-moving party is being ordered to
perform an act, or refrain from performing. In many instances,
this [*28] distinction is more semantical than substantive. For to
order a party to refrain from performing a given act is to limit his ability to
perform any alternative act; similarly, an order to perform in a particular
manner may be tantamount to a proscription against performing in any other.
Abdul Wali v. Coughlin, 754 F.2d 1015,
1025-26 (2d Cir. 1985), overruled on
other grounds by O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 n.2, 96 L.
Ed. 2d 282 (1987). In determining whether to define the contested injunction in
the case before it as mandatory or prohibitory, the court in Abdul Wali looked to the gravamen of the
plaintiff's complaint and found it did indeed seek to prohibit action on the
part of the defendant, even though one could reasonably argue the injunction
changed the status quo. Id. at 1026.
So too in the case before us. The gravamen of the church's claim is to stop the
government from enforcing the CSA against it and infringing on the use of its
sacrament. Read in this light, the overall tone and intent of the order remains
prohibitory because its purpose is to prohibit the government from interfering
with the UDV's religious [*29] practices.
With respect to the question of status quo, it is generally described as
"the last peaceable uncontested status existing between the parties before
the dispute developed." 11A WRIGHT & MILLER § 2948, at 136 n.14
(listing cases). See also Prairie Band of
Potawatomi Indians, 253 F.3d at 1249; Dominion
Video Satellite, Inc. v. EchoStar Satellite Corp., 269 F.3d 1149, 1155
(10th Cir. 2001); SCFC ILC, Inc., 936
F.2d at 1100 n.8. Here, however, we are faced with a conflict between two
federal statutes, RFRA and the CSA, plus an international treaty, which
collectively generate important competing status quos.
The status quo for the UDV was that it was practicing its religion through its
importation and use of hoasca at
religious ceremonies. I am not suggesting, as Judge Murphy argues, that the
status quo is the UDV's legal right
pursuant to RFRA to the free exercise of its religion. Rather, as a matter of
fact the church was actively engaged in its religious practices. n3 Status quo
for the government immediately prior to this litigation was its enforcement of
the drug laws against the UDV in accordance with the CSA [*30] and
the Convention, which occurred after the government discovered the UDV was
importing hoasca for religious
purposes and exercised its prosecutorial discretion to stop that importation.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 I also disagree with Judge Murphy's contention that both the church and the
government "recognized that the importation and consumption of hoasca violated the CSA," Murphy,
J., opin. at 10, and therefore the status quo was solely the government's
enforcement of the CSA and compliance with the treaty. The UDV may have acted
in a somewhat clandestine manner in the course of importing the hoasca and using it in its religious
ceremonies. However, its importation and use of the tea was premised on its
firmly held belief that such religious activity was in fact protected from
government interference by its right to the free exercise of its religion.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
We are thus presented with two plausible status quos, each of them important.
Moreover, since both parties contest the validity of the other's actions, it is
difficult to [*31] describe either position as "the last
peaceable, uncontested status existing between the parties." The
injunction granted by the district court can certainly be read to have altered the
status quo for the government and thereby caused it harm. Conversely, failure
of the court to grant the injunction would have altered the status quo for the
church, causing it harm. As discussed above, injunctive relief may be warranted
where preserving the status quo perpetuates harm against the moving party. See, e.g., Crowley, 679 F.2d at 995
(preliminary relief appropriate where perpetuation of status quo worked
continuing harm to plaintiffs); Canal
Auth., 489 F.2d at 576 (status quo should not be perpetuated where it
causes irreparable harm to one of the parties); Sluiter v. Blue Cross & Blue Shield of Michigan, 979 F. Supp.
1131, 1136 (E.D. Mich. 1997) (prevention of irreparable harm, rather than
maintenance of status quo, should guide court in granting mandatory injunction,
especially where preserving status quo severely threatens lives of movants).
And the competing harms that might arise from a change in the status quo can be
fully addressed [*32] under the balance of harms and public interest
facets of the preliminary injunction test. See,
e.g., Millennium Restaurants Group, Inc. v. City of Dallas, 181 F. Supp. 2d
659, 667 (N.D. Tex. 2001) (balancing irreparable harm to sexually oriented
business' First Amendment right of free expression against temporary harm to
city by virtue of injunction preventing city from revoking license of
business); Mediplex of Massachusetts,
Inc. v. Shalala, 39 F. Supp. 2d 88, 100-01 (D. Mass. 1999) (preliminary
injunction appropriate, in part, where harm to nursing facility residents
arising from government's intention to close facility outweighed more general
harm to government); Canterbury Career
School, Inc. v. Riley, 833 F. Supp. 1097, 1105-06 (D.N.J. 1993) (injunction
properly issued where plaintiff would suffer loss of federal funding and
accreditation as balanced against more general harm to government).
Turning to the district court's review of the four preliminary injunction
factors and giving due deference to its weighing of the evidence, I am
convinced for all of the reasons described by the district court, see supra at 13-15, and [*33]
set forth in the panel opinion, O Centro,
342 F.3d at 1179-87, that the court did not abuse its discretion in concluding
the UDV has established the first preliminary injunction factor, a substantial
likelihood of success on the merits of the case. Id. at 1187. n4 With respect to irreparable harm, the district
court, acknowledging its jurisdiction was founded upon RFRA, correctly
recognized that the violation of one's right to the free exercise of religion
necessarily constitutes irreparable harm. See,
e.g., Kikumura, 242 F.3d at 963 ("courts have held that a plaintiff
satisfies the irreparable harm analysis by alleging a violation of RFRA");
Jolly v. Coughlin, 76 F.3d 468, 482
(2d Cir. 1996) ("although plaintiff's free exercise claim is statutory
rather than constitutional, the denial of the plaintiff's right to the free
exercise of his religious beliefs is a harm that cannot be adequately
compensated monetarily"). The harm to the UDV from being denied the right
to the use of a sacrament in its religious services is indisputably
irreparable.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 I do not, however, include footnote 2 of the panel majority opinion in my
reasoning here. See O Centro Espirita Beneficiente Uniao Do
Vegetal v. Ashcroft, 342 F.3d
1170, 1173 n.2 (10th Cir. 2003). The language in that
footnote could lead one to conclude that a plaintiff's initial showing of a prima facie RFRA violation would satisfy
the likelihood of success on the merits prong of the preliminary injunction
test regardless of the government's successful articulation of a restrictively
applied compelling interest. Such a conclusion would be incorrect; only an unrebutted prima facie showing could
establish the likelihood of success on the merits of a RFRA claim. See id. at 1179-87 (discussion regarding
UDV's showing likelihood of success on the merits by virtue of government's
failure to establish compelling interest applied in least restrictive manner).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*34]
The district court then balanced the irreparable harm to the UDV against the
harm the government would suffer from a preliminary injunction prohibiting its
enforcement of the CSA against the church's religious use of a controlled
substance, and from its compliance with the Convention. As Judge McConnell so
aptly observes, one cannot evaluate the balance of harm and public interest
factors separately and isolated from Congress' own balancing of these factors
in RFRA. See McConnell, J., opin. at
33-36. In RFRA, Congress determined that the balance of equities and public
interest should weigh in favor of the free exercise of religion and that this
settled balance should only be disrupted when the government can prove, by
specific evidence, that its interests are compelling and its burdening of
religious freedom is as limited as possible. See 42 U.S.C. § 2000bb-1(a)-(b).
Certainly the interests of the government as well as the more general public
are harmed if the government is enjoined from enforcing the CSA against the
general importation and sale of street drugs, or from complying with the treaty
in this regard. But this case is not about enjoining [*35]
enforcement of the criminal laws against the use and importation of street
drugs. Rather, it is about importing and using small quantities of a controlled
substance in the structured atmosphere of a bona fide religious ceremony. In
short, this case is about RFRA and the free exercise of religion, a right
protected by the First Amendment to our Constitution. In this context, what
must be assessed is not the more general harm which would arise if the
government were enjoined from prosecuting the importation and sale of street
drugs, but rather the harm resulting from a temporary injunction against
prohibiting the controlled use of hoasca
by the UDV in its religious ceremonies while the district court decides the
issues at a full trial on the merits.
As asserted by the government, the relevant harms in this context are the risk
of diversion of hoasca to
non-religious uses and the health risks to the UDV members who ingest the tea.
As the panel opinion explained, however, the district court found that the parties'
evidence regarding health risks to the UDV members from using hoasca as a sacrament in their religious
services was "in equipoise," and the evidence regarding
the [*36] risk of diversion to non-ceremonial users was
"virtually balanced" or "may even . . . tip the scale slightly
in favor of Plaintiffs' position." See
O Centro, 342 F.3d at 1179-83 (citing district court and reviewing
evidence).
I disagree with Judge Murphy's assertion that because plaintiffs have the
burden of proof on the preliminary injunction factors they necessarily lose if
the evidence is in equipoise on the question of harm to the government's
asserted interests. See Murphy, J.,
opin. at 39-40. As Judge Murphy recognizes, a plaintiff seeking a preliminary
injunction has the burden of showing that the harm to it outweighs any harm to the party to be enjoined or to the public
interest. See Kikumura, 242 F.3d at
955. Here the harm to the UDV from being denied the right to freely exercise
its religion, which under anyone's measure carries significant weight and is actually occurring, must be measured
against the potential risks of
diversion of hoasca to non-religious
uses and harm to the health of church members consuming the hoasca. As the UDV established to the
district court's satisfaction, neither of the potential harms [*37]
asserted by the government are more likely than not to occur. Thus, the balance
is between actual irreparable harm to plaintiff and potential harm to the
government which does not even rise to the level of a preponderance of the
evidence.
Likewise, the harm resulting to the government from a violation of the
Convention in this context is similar to the harm suffered as a result of the
government's temporary inability to enforce the CSA against the church. As with
the CSA, the treaty must be read in light of RFRA and the religious use of the
controlled substance here. n5 While the general intent of the Convention was to
prevent the illicit use and trafficking of psychotropic substances, it
recognized that plants containing such substances were often used for
legitimate religious purposes. It therefore permitted signatory nations to seek
an exemption from the treaty for indigenous plants containing prohibited
substances "traditionally used by certain small, clearly determined groups
in magical or religious rites." See 1971
Convention on Psychotropic Substances, Art. 32(4), 32 U.S.T. 543. Indeed, the
United States obtained such an exemption for peyote. See O Centro, 342 F.3d at 1175-76. [*38]
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 As the panel opinion makes clear:
The Supreme Court has directed "that an Act of Congress . . . is on a full
parity with a treaty, and that when a statute which is subsequent in time is
inconsistent with a treaty, the statute, to the extent of conflict, renders the
treaty null." Id. (quoting Reid v. Covert, 354 U.S. 1, 18,
1 L. Ed. 2d 1148) (1957) (plurality opinion)). See also Whitney v. Robertson, 124 U.S. 190, 194, 31 L. Ed. 386 (if
treaty and statute conflict, "the one last in date will control the
other").
O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170, 1183-84 (10th Cir. 2003).
- - - - - - - - - - - - End Footnotes- - - - - - - - -
- - - - -
In light of the Convention's acknowledgment that the use of psychotropic
substances in the course of religious rituals may warrant an exception from the
treaty's terms, as well as the exemption granted to the United States for
peyote, the government's argument that it will be significantly harmed by a
preliminary injunction temporarily [*39] restraining it from
enforcing the treaty against the UDV does not ring entirely true. This
injunction temporarily bars the government in small part from abiding by a
treaty which contemplates the religious use of plants containing prohibited
substances, in order that the UDV's exercise of its religious faith may be
protected pending a full trial on the merits.
Moreover, given the competing status quos represented in this case - the church
exercising its religion versus the government enforcing the drug laws and
complying with the treaty - the district court's inclusion of the additional
terms in the preliminary injunction, in which the government is permitted to
perform most of its regulatory functions regarding the importation of this
controlled substance, is a reasonable attempt to balance the harms suffered by
either party until a full trial can be had on the merits. Viewed in this light,
and given the conclusion that the UDV has a strong likelihood of succeeding on
the merits of its claim under RFRA, the government's argument that it would be
significantly harmed by a temporary injunction is considerably weakened.
With respect to harm to the public interest, there is an
important [*40] public interest in both the enforcement of our
criminal drug laws and in compliance with our treaty commitments. But there is
an equally strong public interest in a citizen's free exercise of religion, a
public interest clearly recognized by Congress when it enacted RFRA and by the
signatories to the Convention when they authorized exemptions for religious use
of otherwise prohibited substances. n6 It cannot go without comment that
Congress, in response to the Supreme Court's ruling in Employment Division v. Smith, 492 U.S. 872 (1990), enacted RFRA to
overturn the holding in that case. As noted by the panel, the Supreme Court
held in Smith that the "Free
Exercise Clause of the First Amendment did not require the State of Oregon to
exempt from its criminal drug laws the sacramental ingestion of peyote by
members of the Native American Church." O Centro, 342 F.3d at 1176 (citing Smith, 492 U.S. at 885-890). According to Smith, "generally applicable laws . . . . [could] be applied
to religious exercises regardless of whether the government [demonstrated] a
compelling interest" for enforcing the law. Id. In response, Congress [*41] passed RFRA to restore
the compelling interest test articulated in Sherbert
v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 32 L. Ed. 2d 15 (1972). n7 Thus,
pursuant to RFRA, there is a strong public interest in the free exercise of
religion even where that interest may conflict with the CSA. n8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 Lending their voice as amici curiae in
support of the UDV's position are a variety of other religious organizations.
Among these groups are the Christian Legal Society, the National Association of
Evangelicals, Clifton Kirkpatrick, as the Stated Clerk of the General Assembly
of the Presbyterian Church, and the Queens Federation of Churches, Inc. The
presence of these varied groups as advocates for the UDV further highlights the
vital public interest in protecting a citizen's free exercise of religion.
n7 The Supreme Court has subsequently found RFRA unconstitutional as applied to
the states. City of Boerne v. Flores,
521 U.S. 507, 519, 138 L. Ed. 2d 624 (1997). However, RFRA is still applicable
to the federal government. Kikumura v.
Hurley, 242 F.3d 950, 960 (10th Cir. 2001). [*42]
n8 Judge Murphy relies heavily on Congress' specific findings that the
importation and consumption of controlled substances are adverse to the public
interest, see Murphy, J., opin. at
38-39, while totally ignoring the immediate and strong reaction Congress had to
the Supreme Court's decision in Employment
Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990). The
Congressional findings accompanying RFRA explicitly state that the framers of
the Constitution, recognizing free exercise of religion as an unalienable
right, secured its protection in the First Amendment to the Constitution; . . .
laws "neutral" toward religion may burden religious exercise as
surely as laws intended to interfere with religious exercise; . . . [and]
governments should not substantially burden religious exercise without
compelling justification.
42 U.S.C. § 2000bb(a)(1)-(3). Congress went on to express its displeasure with
the Supreme Court's decision in Smith
and stated that the compelling interest test set out in Sherbert v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 32 L.
Ed. 2d 15 (1972), struck a "sensible balance[] between religious liberty
and competing prior governmental interests." 42 U.S.C. § 2000bb(a)(4)-(5).
In making this observation, I do not assert, as Judge Murphy suggests, that
Congress' findings in conjunction with its passage of the CSA are totally
irrelevant, or that the dissent erred in its reference to them. See Murphy, J., opin. at 39 n.13.
Rather, it is my position that the findings articulated by Congress in the CSA
cannot be viewed without reference to Congress' adamant affirmation that the
free exercise of religion is an unalienable right to be burdened only under the
most compelling of government justifications.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*43]
For all the reasons stated above, even under the heightened standard affirmed
by a majority of this court, the district court did not abuse its discretion in
granting the injunction to the church. The court held that
in balancing the Government's concerns [regarding harm] against the injury
suffered by the [church] when [its members are] unable to consume hoasca in
their religious ceremonies, this Court concludes that, in light of the
closeness of the parties' evidence regarding the safety of hoasca use and its
potential for diversion, the scale tips in the [church's] favor.
O Centro, 282 F. Supp.
2d at 1270. It also noted that by issuing the
injunction, the public's interest in the protection of religious freedoms would
be furthered. Id. The district
court's ruling is appropriate in light of Congress' implicit RFRA determination
that the harm prevented and public interest served by protecting a citizen's
free exercise of religion must be given controlling weight, barring the
government's proof, by specific evidence, that its interests are more
compelling. Here, the government failed to overcome Congress' determination.
McCONNELL, [*44] J.,
joined by TYMKOVICH, J., concurring,
and joined by HARTZ, J., and O'BRIEN, J., as to Part I.
This Court has traditionally required a heightened showing for preliminary
injunctions in three "disfavored" categories: injunctions that
disturb the status quo, mandatory injunctions, and injunctions that afford the
movant substantially all the relief it may recover at the conclusion of a full
trial on the merits. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098-99 (10th
Cir. 1991). We heard this case en banc to consider
whether to jettison the heightened standard for preliminary injunctions that
disturb the status quo. A majority of this Court has concluded that there are
reasons--not fully accounted for in the balance of harms analysis--for courts
to disfavor preliminary injunctions that disturb the status quo, and thus
reaffirms our traditional rule (with slight modification and clarification).
See Opinion of Murphy, J., at 1-10. A different majority has concluded that,
even under the heightened standard, Appellee O Centro Espirita Beneficiente
Uniao do Vegetal ("UDV") is entitled to a preliminary injunction
against enforcement of laws against [*45] the possession and use of
its sacramental substance, hoasca.
Opinion of Seymour, J., at 28. I write separately to explain why both halves of
this holding, in my opinion, are correct. n1
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 Judges Seymour and Murphy have each written opinions that concur in part of
the holding of the en banc court and dissent from the other part. For
convenience, I will refer to those portions of these opinions that dissent from
the en banc holding as a "dissent," and to those portions that concur
in the holding as a "concurrence." I join the per curiam opinion in
its entirety. I join Part I of Judge Murphy's separate opinion, and Part II of
Judge Seymour's separate opinion, on the understanding that the analysis holds
"even under the heightened standard affirmed by a majority of this court."
Opinion of Seymour, J., at 28.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -1. A Heightened Standard Should Apply to
Preliminary Injunctions That Disturb the Status Quo
The Supreme Court has stated that preliminary injunctions have the
"limited purpose" of "merely [*46] [preserving] the
relative positions of the parties until a trial on the merits can be
held." University of Texas v.
Camenisch, 451 U.S. 390, 395, 68 L. Ed. 2d 175 (1981). This emphasis on
preserving the status quo is not the same as, and cannot be reduced to,
minimizing irreparable harm to the parties during the pendency of litigation,
as suggested by the dissent. See Opinion of Seymour, J., at 5-6. At the
preliminary injunction stage, before there has been a trial on the merits, the
function of the court is not to take whatever steps are necessary to prevent
irreparable harm, but primarily to keep things as they were, until the court is
able to determine the parties' respective legal rights. That is why, in addition
to the four preliminary injunction factors of harm to the movant, balance of
harm, public interest, and likelihood of success on the merits, this Court has
required district courts to take into account whether preliminary relief would
preserve or disturb the status quo. The burden of justifying preliminary relief
is higher if it would disturb the status quo. SCFC ILC, Inc., 936 F.2d at 1098-99.
There is no reason to think that the "general [*47] maxim"
that "the purpose of a preliminary injunction is to preserve the status
quo between the parties pending a full trial on the merits" is one that
"should not be taken merely at face value" or disregarded except
insofar as it "impacts the balance of harms between the parties and the
public interest." Opinion of Seymour, J., at 6, 7. A judicial version of
Hippocrates' ancient injunction to physicians - above all, to do no harm -
counsels against forcing changes before there has been a determination of the
parties' legal rights. The settled rule of our tradition is that losses should
remain where they fall until an adequate legal or equitable justification for
shifting them has been demonstrated.
Traditional equity practice held that the sole
purpose of a preliminary injunction was to preserve the status quo during the
pendency of litigation. See, e.g., Farmers' R.R. Co. v. Reno, Oil Creek &
Pithole Ry. Co., 53 Pa. 224 (Pa. 1866) (dissolving an injunction that
blocked defendants from continuing to use certain land in their possession
because the sole purpose of a preliminary injunction is to preserve the status
quo); Chicago, St. Paul & Kansas City
R.R. Co. v. Kansas City, St. Joseph & Council Bluffs R.R. Co., 38 F.
58, 60 (C.C.W.D. Mo. 1889) [*48] (noting that a higher standard
applies to mandatory injunctions that disrupt the status quo); New Orleans & North Eastern R.R. Co. v.
Mississippi, Terre-aux Boeufs & Lake R.R. Co., 36 La. Ann. 561 (La.
1884) (maintaining an injunction insofar as it maintained the status quo, but
dissolving that portion that did not); Warner
Bros. Pictures v. Gittone, 110 F.2d 292, 293 (3d Cir. 1940) (per curiam)
("Irreparable loss resulting from refusal to accord the plaintiff a new
status, as distinguished from interference with rights previously enjoyed by
him, does not furnish the basis for interlocutory relief."); Levy v. Rosen, 258 Ill. App. 262 (Ill.
App. Ct. 1930) ("An interlocutory order is usually granted to preserve the
status quo, but the order in this
appeal did not do that, but changed the status
quo. The entry of such order was clearly erroneous."); Gill v. Hudspeth County Conservation &
Reclamation Dist. No. 1, 88 S.W.2d 517, 519 (Tex. Civ. App. 1935)
("The court's discretion should be exercised against the writ if its
issuance would change the status quo."); Bowling v. Nat'l Convoy & Trucking Co., 101 Fla. 634, 135 So.
541 (Fla. 1931) [*49] ("Since the object of a preliminary
injunction is to preserve the status quo, the court will not grant such an
order where its effect would be to change the status."); Gates v. Detroit & Mackinac Ry. Co.,
151 Mich. 548, 115 N.W. 420, 421 (Mich. 1908) (dissolving that portion of a
preliminary injunction that went beyond the status quo); Jones v. Dimes, 130 F. 638, 639 (D. Del. 1904) (relaxing the burden
on the moving party when the requested injunction merely maintained the status
quo);1 James L. High, A Treatise on the
Law of Injunctions (Chicago: Callaghan & Co. 1890, 3d ed.) § 4 at 5
("The sole object of an interlocutory injunction is to preserve the
subject in controversy in its then condition, and, without determining any
questions of right").
To be sure, it is sometimes necessary to require a party who has recently
disturbed the status quo to reverse its actions. Such an injunction restores,
rather than disturbs, the status quo ante, and is thus not an exception to the
rule. "Status quo" does not mean the situation existing at the moment
the law suit is filed, but the "last peaceable uncontested status existing
between the parties before [*50] the dispute developed." 11A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948 (2d ed. 1995). n2 Thus,
courts of equity have long issued preliminary injunctions requiring parties to restore the status quo ante. Shanaman v. Yellow Cab Co., 491 Pa. 516,
421 A.2d 664, 667 (Pa. 1980) (reversing a preliminary injunction because
"the purpose of a mandatory preliminary injunction is to restore the
status quo" and the injunction actually disrupted that status); Morgan v. Smart, 88 S.W.2d 769, 772
(Tex. Civ. App. 1935) ("There are no real exceptions to the rule that the
status quo will not be disturbed by a preliminary injunction, and when by such
an injunction the possession of property is properly ordered to be restored it
is not to disturb the status quo, but to avoid mistaking the true status and to
avoid preserving a false one.").
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 This, too, is a traditional principle of equity practice. See, e.g., Fredericks v. Huber, 180 Pa.
572, 37 A. 90, 91 (Pa. 1897); Bowling v.
Nat'l Convoy & Trucking Co., 101 Fla. 634, 135 So. 541, 544 (Fla.
1931); Bellows v. Ericson, 233 Minn.
320, 46 N.W.2d 654, 659 n.9 (Minn. 1951); State
ex rel. McKinley Automotive, Inc. v. Oldham, 283 Ore. 511, 584 P.2d 741,
743 n.3 (Or. 1978); Weis v. Renbarger,
670 P.2d 609, 611 (Okla. Ct. App. 1983).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*51]
In recent decades, most courts - and all federal courts of appeal - have come
to recognize that there are cases in which preservation of the status quo may
so clearly inflict irreparable harm on the movant, with so little probability
of being upheld on the merits, that a preliminary injunction may be appropriate
even though it requires a departure from the status quo. See, e.g., Canal Authority v. Callaway, 489 F.2d 567, 576 (5th Cir.
1974). n3 But preliminary injunctions that disturb the status quo, while no
longer categorically forbidden, remain disfavored. Only one federal court of
appeals has concluded that courts should simply strive to minimize irreparable
harm, with no special attention to the status quo, as our dissenters suggest. United Food & Commercial Workers Union,
Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 348 (6th
Cir. 1998); see Opinion of Seymour,
J., at 12. n4
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 Some states continue to make preservation of the status quo a necessary
requirement for all preliminary injunctions. See, e.g., Postma v. Jack
Brown Buick, Inc., 157 Ill. 2d 391, 626 N.E.2d 199, 203, 193 Ill. Dec. 166
(Ill. 1993) (stating categorically that "preliminary injunctions are
improper where they tend to change the status quo of the parties rather than
preserve it"); County of Richland v.
Simpkins, 348 S.C. 664, 560 S.E.2d 902, 906 (S.C. Ct. App. 2002) (noting
that the sole purpose of a preliminary injunction is to preserve the status
quo, and affirming the denial of an injunction that would change that
status). [*52]
n4 I am puzzled by the dissent's suggestion that abandoning heightened scrutiny
for preliminary injunctions that disturb the status quo would "bring our
jurisprudence in closer accord" with "other circuits." Opinion
of Seymour, J., at 4-5, citing In re
Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, 60
F.3d 27, 34-35 (2d Cir. 1995); Acierno v.
New Castle County, 40 F.3d 645, 653 (3d Cir. 1994); Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980); Anderson v. United States, 612 F.2d
1112, 1114-15 (9th Cir. 1980). Certainly that is not true of the Second
Circuit. In the very opinion cited by the dissent, Tom Doherty, the Second Circuit states:
We have required the movant to meet a higher standard where: (i) an injunction will alter, rather than
maintain, the status quo, or (ii) an injunction will provide the movant
with substantially all the relief sought and that relief cannot be undone even
if the defendant prevails at a trial on the merits.
60 F.3d at 33-34 (emphasis added). The other cited circuits blend the
disfavored categories of mandatory injunctions and those that disturb the
status quo, but continue to treat the latter as requiring a heightened showing.
For example, the Third Circuit decision cited by the dissenters holds as
follows:
A primary purpose of a preliminary injunction is maintenance of the status quo
until a decision on the merits of a case is rendered. A mandatory preliminary
injunction compelling issuance of a building permit fundamentally alters the
status quo. . . . A party seeking a
mandatory preliminary injunction that will alter the status quo bears a
particularly heavy burden in demonstrating its necessity."
Acierno v. New Castle County, 40 F.3d
at 647, 653 (emphasis added; citation omitted). The other cited cases are to
similar effect. See Anderson v. United
States, 612 F.2d at 1114-15 ("Mandatory preliminary relief, which goes
well beyond simply maintaining the status quo pendente lite, is particularly
disfavored, and should not be issued unless the facts and law clearly favor the
moving party."); In re Microsoft
Corporation Antitrust Litigation, 333 F.3d at 526 ("Mandatory
preliminary injunctions [generally] do not preserve the status quo and normally
should be granted only in those circumstances when the exigencies of the
situation demand such relief."), quoting
Wetzel v. Edwards, 635 F.2d at 286.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*53]
There are sound reasons of jurisprudence in support of the traditional view
that preliminary injunctions that disturb the status quo require heightened
justification. A preliminary injunction of any sort is an
"extraordinary" and "drastic" remedy. See United States ex rel. Potawatomi Indian
Tribe v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989). Judicial power is
inseparably connected with the judicial duty to decide cases and controversies
by determining the parties' legal rights and obligations. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60
(1803). A preliminary injunction is remarkable because it imposes a constraint
on the enjoined party's actions in advance of any such determination. That is,
a preliminary injunction forces a party to act or desist from acting, not
because the law requires it, but because the law might require it. This is all the more striking because, given that
many preliminary injunctions must be granted hurriedly and on the basis of very
limited evidence, deciding whether to grant a preliminary injunction is
normally to make a choice under conditions of grave uncertainty. See [*54] Heideman v. South Salt Lake City, 348
F.3d 1182, 1188 (10th Cir. 2003).
It is one thing for a court to preserve its power to grant effectual relief by
preventing parties from making unilateral and irremediable changes during the
course of litigation, and quite another for a court to force the parties to
make significant alterations in their practices before there has been time for
a trial on the merits. See, e.g., Gittone, 110 F.2d at 293 ("The
effect of the preliminary injunction which the court granted was not to
preserve the status quo but rather to alter the prior status of the parties
fundamentally. Such an alteration may be directed only after final
hearing."); In re Marriage of
Schwartz, 131 Ill. App. 3d 351, 475 N.E.2d 1077, 1079, 86 Ill. Dec. 698
(Ill. App. Ct. 1985) ("It is not the purpose of the preliminary injunction
to determine controverted rights or decide the merits of the case. . . . A
preliminary injunction is merely provisional in nature, its office being merely
to preserve the status quo until a final hearing on the merits.").
Moreover, preserving the status quo enables the court to stay relatively
neutral [*55] in the underlying legal dispute. The restrictions
placed on the parties can be understood as requiring only that they act in a
manner consistent with the existence of a good-faith dispute about the relevant
legal entitlements. The moving party is not given any rights, even temporarily,
that would normally be his only if the legal dispute were resolved in his
favor. For example, ownership disputes often raise concerns that the defendant
in possession would overuse or waste the property before a complainant could
regain possession through legal proceedings. Under those circumstances,
equitable courts regularly enjoin the waste, ordering the defendant to preserve
the property in statu quo. The
general rule, however, is that except in the most exceptional cases, a court of
equity cannot go beyond the status quo by putting the moving party into
possession of the disputed property, even though, presumably, being deprived of
the interim ability to enjoy the property would often constitute irreparable
harm. See, e.g., Farmers' R.R. Co., supra; Morgan v. Smart, 88 S.W.2d 769, 771
(Tex. Civ. App. 1935) ("It is not the function of a preliminary
injunction [*56] to transfer the possession of land from one person
to another pending an adjudication of the title, except in cases in which the
possession has been forcibly or fraudulently obtained . . . [and the injunction
is necessary so that] the original status of the property [may] be preserved
pending the decision of the issue."), quoting
Simms v. Reisner, 134 S.W. 278, 280 (Tex. Civ. App. 1911). See generally Mandatory Injunction Prior
to Hearing of Case, 15 A.L.R.2d 213, §§ 22-23 (collecting dozens of cases
on this issue).
Fundamentally, the reluctance to disturb the status quo prior to trial on the
merits is an expression of judicial humility. As Judge Murphy points out, a
court bears more direct moral responsibility for harms that result from its
intervention than from its nonintervention, and more direct responsibility when
it intervenes to change the status quo than when it intervenes to preserve it. See Opinion of Murphy, J., at 5.
Moreover, like the doctrine of stare
decisis, preserving the status quo serves to protect the settled
expectations of the parties. Disrupting the status quo may provide a benefit to
one party, but only by depriving [*57] the other party of some right
he previously enjoyed. Although the harm and the benefit may be of equivalent
magnitude on paper, in reality, deprivation of a thing already possessed is
felt more acutely than lack of a benefit only hoped for. As the Supreme Court
observed in Wygant v. Jackson Bd. of
Educ., 476 U.S. 267, 282-83, 90 L. Ed. 2d 260 (1986), "denial of a
future employment opportunity is not as intrusive as loss of an existing
job." Percipient students of human nature have often made similar
observations. David Hume, for example, wrote:
Such is the effect of custom, that it not only reconciles us to any thing we
have long enjoy'd, but even gives us an affection for it, and makes us prefer
it to other objects, which may be more valuable, but are less known to united
States What has long lain under our eye, and has often been employ'd to our
advantage, that we are always the
most unwilling to part with; but can easily live without possessions, which we
never have enjoy'd, and are not accustom'd to.
David Hume, A Treatise of Human Nature,
bk. 3, pt. 2, § 3, para. 4 (1739). See
also, e.g., Aristotle, Nichomachean
Ethics, bk. IX, ch. 1, at [*58] 1164b17-19 (W.D. Ross trans.), in The Basic Works of Aristotle (Richard
McKeon ed., 1941) ("For most things are not assessed at the same value by
those who have them and those who want them; each class values highly what is
its own . . . ."). Justice Holmes has justified the doctrine of adverse
possession on these grounds:
The foundation of the acquisition of rights by lapse of time is to be looked
for in the position of the person who gains them, not in that of the loser. . .
. A thing which you have enjoyed and used as your own for a long time, whether
property or an opinion, takes root in your being and cannot be torn away
without your resenting the act and trying to defend yourself, however you came
by it. The law can ask no better justification than the deepest instincts of
man.
Oliver Wendell Holmes, Jr., The Path of
the Law, 10 Harv. L. Rev. 457, 477 (1897).
Notwithstanding the tendency of those trained in economics to view opportunity
costs as equivalent to actual expenditures, modern social science research has
confirmed the reality of "loss aversion" (the tendency to attach
greater value to losses than to foregone gains of equal amount) and
the [*59] closely related "endowment effect" (the tendency
to value already possessed goods more than prospective acquisitions). See, e.g., Daniel Kahneman, Jack L.
Knetsch & Richard H. Thaler, The
Endowment Effect, Loss Aversion, and Status Quo Bias, 5 J. Econ. Persp. 193 (1991); Amos Tversky
& Daniel Kahneman, Loss Aversion in
Riskless Choice: A Reference-Dependent Model, 106 Q.J. Econ. 1039 (1991); Daniel Kahneman et al., Experimental Tests of the Endowment Effect
and the Coase Theorem, 98 J. Pol.
Econ. 1352 (1990); Jack L. Knetsch & J.A. Sinden, Willingness to Pay and Compensation Demanded: Experimental Evidence of
an Unexpected Disparity in Measures of Value, 99 Q.J. Econ. 507, 512-13 (1984). To take one of many illustrations,
one study found that duck hunters would pay, on average, $ 247 to obtain the
privilege of keeping a particular wetland undeveloped, but if they already had
the right to block development, they would demand an average of $ 1,044 to give
it up. Judd Hammack & Gardner M. Brown, Jr., Waterfowl and Wetlands: Toward Bioeconomic Analysis 26 (1974).
Moreover, adverse disruptions in the status quo carry along with them the cost
and [*60] difficulty associated with adjusting to change. These
involve not only direct transition costs but also the costs associated with
uncertainty, which manifest themselves in a reluctance to invest human or other
capital in an enterprise where the returns could disappear at the drop of a
judicial hat. Disruption is expensive. When a court requires a change in the
status quo only to find that its grant of preliminary relief was mistaken and
must be undone, the process is twice as disruptive as when the court preserves
the status quo on a preliminary basis and later issues a final judgment
requiring the change.
The status quo is also relevant to the credibility of the parties' claims of
irreparable harm. It is difficult to measure irreparable harm, and either
party's willingness to put up with a situation in the past can serve as an indication
that the party's injury is not as serious as alleged, or that the party has
implicitly consented to the supposed injury. See Heideman, 348 F.3d at 1191 ("The City has tolerated nude
dancing establishments for many years . . . . This invites skepticism regarding
the imperative for immediate implementation [of a new ordinance].
[*61] "); Majorica, S.A.
v. R.H. Macy & Co., 762 F.2d 7, 8 (2d Cir. 1985) (noting that while
delay alone is not enough to constitute laches, it is ground for doubting a claim
of irreparable harm). Plaintiffs, especially, have the burden of complaining of
injuries promptly, before defendants come to rely on the status quo.
"Equity aids the vigilant, not those who slumber on their rights." Allred v. Chynoweth, 990 F.2d 527, 536
n.6 (10th Cir. 1993); Standard Oil Co. of
N.M. v. Standard Oil Co. of Cal., 56 F.2d 973, 975 (10th Cir.1932); Natural Res. Defendant Council v. Pena,
331 U.S. App. D.C. 198, 147 F.3d 1012, 1026 (D.C. Cir. 1998). Thus, when a
plaintiff is complaining of irreparable injury from a long-established state of
affairs, a court may naturally ask why, if the injury is so pressing as to
warrant preliminary relief, the plaintiff waited so long before bringing a
claim. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2946,
at 113-16 (2d ed. 1995); Edward &
John Burke, Ltd. v. Bishop, 144 F. 838, 839 (2d Cir. 1906); Savage v. Port Reading R.R. Co., 73 N.J.
Eq. 308, 67 A. 436, 438 (N.J. Ch. 1907). [*62]
The status quo is also a useful reference point because litigants often have
incentives to engage in counterproductive strategic behavior. A defendant
facing the loss of property, for example, has a natural incentive to extract as
much of the value of the land as possible before losing possession, even in
ways that limit the land's productivity for years to come. And even when doing
so produces no advantages to the defendant, it is an unfortunate reality of
human nature that many defendants would prefer to destroy the property in
question than to let their adversary have the use of it, both out of spite and
as a way of making the resort to the courts less attractive in the first place.
Likewise, plaintiffs have incentives to seek injunctions not only to avert
irreparable harm to themselves, but also to impose costs on the other party.
This, too, may be done out of spite, or because the higher the costs to the
defendant in complying, the more pressure he will feel to "bargain
desperately to buy his way out of the injunction." Am. Hosp. Supply Corp. v. Hosp. Prods., Ltd., 780 F.2d 589, 594
(7th Cir. 1986). A preliminary injunction aims in part at achieving
temporary [*63] peace between the parties. However, if it
substantially shifts the lines of conflict, it is more likely to function as a
weapon in the plaintiff's arsenal than as a cease-fire. Preserving the last
peaceable uncontested status of the parties maintains a position to which both
parties at least tacitly consented before their dispute, and its concomitant
perverse incentives, arose.
Without a heightened standard, these concerns will likely not be given due
weight. In the context of the balance of harms analysis, it is all too easy to
stop at comparing the absolute magnitudes of the parties' irreparable harms,
without distinguishing between foregone gains and actual losses, and without
considering whether granting an injunction implicates other institutional
concerns about the proper role of the courts. Unless the district court
self-consciously takes the nature of the injunction into account by applying a
heightened standard, the four factors likely will lead to an overconfident
approach to preliminary relief, increasing the cost and disruption from
improvidently granted preliminary injunctions.
A particularly important category of cases where the status quo will often be
determinative [*64] of whether a court should provide preliminary
relief is challenges to the constitutionality of statutes. When a statute is
newly enacted, and its enforcement will restrict rights citizens previously had
exercised and enjoyed, it is not uncommon for district courts to enjoin
enforcement pending a determination of the merits of the constitutional issue. See, e.g., Eagle Books, Inc. v. Ritchie,
455 F. Supp. 73, 77-78 (D. Utah 1978); Reproductive
Services v. Keating, 35 F. Supp. 2d 1332, 1337 (N.D. Okla. 1998); ACLU v. Johnson, 194 F.3d 1149, 1152
(10th Cir.1999); Utah Licensed Beverage
Ass'n v. Leavitt, 256 F.3d 1061, 1076-77 (10th Cir. 2001); Elam Constr., Inc. v. Reg'l Transp. Dist.,
129 F.3d 1343, 1347-48 (10th Cir. 1997) (per curiam). When a statute has long
been on the books and enforced, however, it is exceedingly unusual for a
litigant who challenges its constitutionality to obtain (or even to seek) a
preliminary injunction against its continued enforcement. See, e.g., Walters v. Nat'l
Ass'n of Radiation Survivors, 468 U.S. 1323, 1324, 82 L. Ed. 2d 908
(Rehnquist, Circuit Justice [*65] 1984) ("It would take more
than the respondents have presented in their response . . . to persuade me that
the action of a single District Judge declaring unconstitutional an Act of
Congress that has been on the books for more than 120 years should not be
stayed . . . ."). This is not because the balance of harms to the
litigants is different. Presumably, the loss of constitutional rights from
enforcement of an old statute is no less harmful or irreparable than from
enforcement of a new. The dissent's suggested approach of considering the
status quo only insofar as it bears on "the process of balancing the
various interests and harms among the parties and the public," (Opinion of
Seymour, J., at 7), without a heightened standard, is thus likely to yield the
conclusion that it does not matter whether the statute is old or new. That
would be a dramatic change in our practice. The reason for weighing the status
quo is not to be found in the four preliminary injunction factors. It is
rooted, instead, in the institutional concerns we have canvassed above.
I thus join in the en banc court's decision to continue to require litigants
seeking a preliminary injunction, that would alter the [*66] status
quo, to meet a heightened burden of justification.
II. Does this Preliminary Injunction
Satisfy the Heightened Standard?
This case satisfies even the heightened standard for preliminary injunctions.
The applicable statute, the Religious Freedom Restoration Act, 42 U.S.C. §
2000bb-1(b), sets a most demanding burden of proof for the government: the
compelling interest test. The factual findings of the district court, which are
not challenged on appeal, make it clear that the government has not and cannot
meet that burden on this record, and that the balance of equities is
overwhelmingly in favor of the movant. The en banc majority is therefore right,
in my opinion, to affirm the district court's grant of a preliminary
injunction.
Plaintiffs establish, and the government does not dispute, that enforcement of
the CSA in this context would impose a substantial burden on a sincere exercise
of religion. It is common ground that such a burden constitutes irreparable
injury. The plaintiffs have thus established a prima facie case (relevant to
the probability of success on the merits) and an irreparable injury (relevant
to the balance of harms). [*67] It is also common ground that the
evidence at the hearing regarding the government's assertions of an interest in
the health of hoasca users and the
prevention of diversion to recreational drug users was in "equipoise"
and "virtually balanced." What is not common ground is the effect of
evenly-balanced evidence regarding possible harms from hoasca use on UDV's ultimate likelihood of success on the merits,
and on the balancing of the equities required for the grant of a preliminary
injunction.
A
The dissent insists that the government is more likely to prevail on the merits
than is UDV. In Judge Murphy's formulation, the government's interest in the
uniform enforcement of drug laws and its interest in full compliance with the
obligations imposed by international treaties are sufficient to meet the
compelling interest standard. He is silent on whether, even if the government's
interests in enforcement and compliance were adjudged compelling, the
government has employed the least restrictive means at its disposal, as RFRA
requires. 42 U.S.C. 2000bb-1(b)(2).
The dissent is premised on the view that "RFRA was never intended to
result in [a] case-by-case [*68] evaluation of the controlled
substances laws, and the scheduling decisions made pursuant to those laws . . .
. it is particularly improper for the court to assume such a function in this
case." Opinion of Murphy, J., at 18. On the contrary, that is precisely
what RFRA instructs courts to do. The dissent does not make clear whether it
interprets RFRA as precluding "case-by-case evaluation" in all
contexts, or whether this is a special rule for controlled substance cases.
Neither interpretation is tenable.
In cases where federal law "substantially burdens" the exercise of
religion, RFRA requires courts to determine whether "application of the burden" to a specific "person" is
in furtherance of a compelling governmental interest and is the least
restrictive means of furthering that interest. 42 U.S.C. § 2000bb-1(b)
(emphasis added). That cannot be done without a case-by-case evaluation.
"Thus, under RFRA, a court does not consider the . . . regulation in its
general application, but rather considers whether there is a compelling
government reason, advanced in the least restrictive means, to apply the . . .
regulation to the individual claimant." Kikumura v. Hurley, 242 F.3d 950, 962 (10th Cir.
2001) [*69] (Murphy, J.). Accordingly, contrary to the dissent,
Congress's general conclusion that DMT is dangerous in the abstract does not
establish that the government has a compelling interest in prohibiting the
consumption of hoasca under the
conditions presented in this case.
Nor is there an implied exemption from RFRA in cases involving the controlled
substances laws. By its terms, RFRA applies to "all Federal or State n5
law, and the implementation of that law, whether statutory or otherwise, and
whether adopted before or after [enactment of RFRA]," unless the law
"explicitly excludes such application by reference to this chapter."
42 U.S.C. § 2000bb-3(a), (b). The CSA contains no such explicit exception.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 As enacted, RFRA extended to both federal and state law, but as applied to
state law, the Supreme Court held that RFRA exceeds the enumerated power of
Congress under Section Five of the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624 (1997).
The Act remains constitutional and in effect as applied to federal law. Kikumura, 242 F.3d at 958-960.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*70]
Judge Murphy argues that "courts simply lack the institutional competence
to craft a set of religious exemptions to the uniform enforcement" of the
drug laws. Opinion of Murphy, J., at 18. But the same may be said for application
of RFRA to virtually any field of regulation that may conflict with religious
exercise. Whatever our justifiably low opinion of our own competence, we are
not free to decline to enforce the statute, which necessarily puts courts in
the position of crafting religious exemptions to federal laws that burden
religious exercise without sufficient justification.
The dissent's notion that the drug laws are impliedly exempt from RFRA scrutiny
is especially surprising in light of the fact that the impetus for enactment of
RFRA was the Supreme Court's decision in a case involving the sacramental use
of a controlled substance. See Congressional Findings and Declaration of
Purposes, 42 U.S.C. § 2000bb(a)(4) (criticizing Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876
(1990)). It may well be that most examples of enforcement of the drug laws will
satisfy strict scrutiny under RFRA, see id.
at 903-07 [*71] (O'Connor, J., concurring) (applying strict scrutiny
to, and upholding, the application of Oregon drug laws to the Native American
Church's sacramental use of peyote), but it can scarcely be clearer that
Congress intended such scrutiny to occur.
The dissent asserts that courts applying the compelling interest test both
before and after RFRA have "routinely rejected religious exemptions from
laws regulating controlled substances," and that "the same result
should obtain in this case." Opinion of Murphy., J., at 20-21 (citing
cases). There is no support in the cases cited, however, for the proposition
that any religious use of any drug is outside the scope of RFRA (or, before Smith, free exercise) protection. Four
of the five pre-RFRA cases cited involve the same group, the Ethiopian Zion
Coptic Church, which advocated the use of marijuana "continually all day,
through church services, through everything [they] do." Olsen v. Drug Enforcement Admin., 279
U.S. App. D.C. 1, 878 F.2d 1458, 1459 (D.C. 1989). The constant and
uncircumscribed use of a drug presents different health risks and risks of
diversion than the use of hoasca suggested
by UDV. The significance [*72] of these differences is underscored
by the conviction of the Ethiopian Zion Coptic Church for the importation of
twenty tons of marijuana. United States
v. Rush, 738 F.2d 497, 501 (1st Cir. 1984). The post- RFRA cases cited
offer no more support for the proposition that the findings of the CSA will
always outweigh the interest in a particular religious use. In U.S. v. Brown, 1995 WL 732803, *2, for
example, the Eighth Circuit found that the "broad use" of marijuana
advocated by the church in question, which included supplying the drug to the
sick and distributing it to anyone who wished it, including children with
parental permission, made accommodation impossible. Both the unconstrained character
of the proposed use and the popularity of marijuana affected the outcome in
these cases: "the vast difference in demand for marijuana on the one hand
and peyote on the other warranted the DEA's response [in declining to grant an
exception.]" Olsen v. DEA at
1463-64. These cases accordingly provide very little insight into the
appropriate result when the standard required by RFRA is applied to a case
involving a tightly circumscribed use of a drug not [*73] in
widespread use.
Even assuming RFRA's compelling interest test applies, the dissent takes the
position that "the government need turn only to express congressional
findings concerning Schedule I drugs" to satisfy RFRA scrutiny. Opinion of
Murphy, J., at 18. The dissent cites no authority for such an approach, and
there is none. Congressional findings are entitled to respect, but they cannot
be conclusive. RFRA requires the
government to "demonstrate[]" that application of a challenged
federal law to religious exercise satisfies strict scrutiny under RFRA. 42
U.S.C. § 2000bb-1(b). The term "demonstrates" is defined as
"meeting the burdens of going forward with the evidence and of
persuasion." Id., § 2000bb-2(3). Obviously, Congress contemplated the
introduction of "evidence" pertaining to the justification of
"application" of the law in the particular instance. If such a burden
of proof could be satisfied by citing congressional finding in the preambles to
statutes, without additional evidence, RFRA challenges would rarely succeed;
congressional findings invariably tout the importance of the laws to which they
are appended.
The dissent points to [*74] two such congressional findings. First,
Congress has made a general finding that the "illegal importation . . .
and possession and improper use of controlled substances have a substantial and
detrimental effect on the health and general welfare of the American
people." Opinion of Murphy, J., at 18-19. Second, Congress has placed DMT
on the list of Schedule I controlled substances, which implies that it
"has high potential for abuse and is not safe to consume even under the
supervision of medical personnel." Id.
These generalized expressions of the government's interest in prohibiting hoasca are very similar to the sweeping
statements of interest that the Supreme Court found wanting in Wisconsin v. Yoder, 406 U.S. 205, 32 L.
Ed. 2d 15 (1972) - one of the cases to which Congress referred as illustrating
the compelling interest test it wished to "restore" by means of RFRA.
See § 2000bb(b)(1). In that case, the
Supreme Court rejected the State of Wisconsin's "contention that its
interest in its system of compulsory education is so compelling that even the
established religious practices of the Amish must give way":
Where fundamental claims of religious freedom [*75] are at stake,
however, we cannot accept such a sweeping claim; despite its admitted validity
in the generality of cases, we must searchingly
examine the interests that the State seeks to promote by its requirement
for compulsory education to age 16, and the impediment to those objectives that
would flow from recognizing the claimed Amish exemption.
406 U.S. at 221 (emphasis added). A similarly "searching examination"
is required here, and can no more be satisfied by quotation of "sweeping
claims" in statutory preambles than it could in Yoder.
If Congress or the executive branch had investigated the religious use of hoasca and had come to an informed
conclusion that the health risks or possibility of diversion are sufficient to
outweigh free exercise concerns in this case, that conclusion would be entitled
to great weight. But neither branch has done that. The two findings on which
the dissent relies address the broad question of the dangers of all controlled substances, or all
Schedule I substances, in the general run of cases. Such generalized statements
are of very limited utility in evaluating the specific dangers of this substance under [*76] these circumstances, because the dangers
associated with a substance may vary considerably from context to context.
Congress itself recognized this and gave the Attorney General authority to make
exemptions from many of the CSA's requirements:
The Attorney General may, by regulation, waive the requirement for registration
of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety.
21 U.S.C. § 822(d) (emphasis added). Thus, the CSA itself recognizes that,
despite Congress's general findings about Schedule I substances, it may
sometimes be "consistent with the public health and safety" to exempt
certain people from its requirements. Indeed, the government evidently believed
this to be true with respect to the Native American Church's peyote use, since
it relied primarily on § 822(d) to authorize its regulation exempting the
Native American Church from the CSA. See 21
C.F.R. § 1307.31 ("The listing of peyote as a controlled substance in
Schedule I does not apply to the nondrug use of peyote in bona fide religious
ceremonies of the Native American Church, and members of the Native
American [*77] Church so using peyote are exempt from registration." (emphasis added)).
Judge Murphy responds that 21 U.S.C. § 822(d) should not be construed as giving
the Attorney General authority to exempt religious groups other than the Native
American Church from registration without specific authorization from Congress,
because the "government's regulatory exemption for peyote . . . was at all
times a product of congressional will." Opinion of Murphy, J., at 24. I
think he is wrong about the scope of the Attorney General's authority under §
822(d), n6 but that is not the point. Even if in practice the only religious
exemption authorized by § 822(d) were for the Native American Church, the plain
text of that provision indicates Congress's belief that at least some use of
substances controlled by the Act are "consistent with the public health
and safety," despite the generalized congressional finding that any
Schedule I substance is not safe to consume even under the supervision of
medical personnel. 21 U.S.C. § 812(b)(1)(C). More recently, Congress has passed
legislation requiring the states to allow the Native American Church to use
peyote, [*78] a Schedule I substance, in religious ceremonies. See American Indian Religious Freedom
Act Amendments of 1994, 42 U.S.C. § 1996a. Congress's consistent position has
been that concerns for religious freedom can sometimes outweigh risks that
otherwise justify prohibiting Schedule I substances. Neither Congress nor the
Executive has treated the CSA's general findings about Schedule I substances as
precluding a particularized assessment of the risks involved in a specific
sacramental use. Neither should we.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 The text and legislative history of the CSA suggest that Congress meant to
give the Attorney General authority to make other religious exemptions. See generally Native American Church v.
United States, 468 F. Supp. 1247, 1249-51 (S.D.N.Y. 1979) (recounting the legislative
history of the exemption for the Native American Church). As Judge Murphy
notes, Opinion of Murphy, J., at 24, this precise question was presented in Olsen v. DEA, 878 F.2d 1458 (D.C. Cir.
1989). In that case, now-Justice Ginsburg refused to accept the DEA's position
that it had the authority to exempt the Native American Church but no other
churches, noting that the DEA's interpretation preferred one church above
others in a way that would raise serious questions concerning the statute's
constitutionality. See id. at 1461.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*79]
Several factors make hoasca atypical
in its likely health consequences. For instance, although DMT is typically
taken intravenously or inhaled in the nonreligious settings that Congress
presumably had in mind when it proscribed the substance, UDV members ingest it
orally. There was some evidence at the hearing that the resulting doses are
considerably smaller than typical intravenous or inhaled doses, and there has
been very little study of the effects of orally ingested DMT. Furthermore, the
fact that hoasca is a relatively
uncommon substance used almost exclusively as part of a well-defined religious
service makes an exemption for bona fide religious purposes less subject to
abuse than if the religion required its constant consumption, or if the drug
were a more widely used substance like marijuana or methamphetamine. Cf. Employment Div. v. Smith, 494 U.S.
872, 913-14, 108 L. Ed. 2d 876 (1990) (Blackmun, J., dissenting). These and
other differences undermine any claim that, in placing DMT on Schedule I,
Congress made a factual finding that should control our assessment of the
relative dangerousness of hoasca.
Judge Murphy expresses disbelief that a [*80] claimant's rights
under RFRA could "turn on whether the adherent has a religious affinity
for street drugs or more esoteric ones." Opinion of Murphy, J., at 26. Of
course it is true that in theory, at least, it is possible to have the same
religious interest in shooting heroin as in drinking hoasca. But one's rights under RFRA depend not only on the nature
of the religious interest but also on the strength of the government's opposed
interest. Here, the government's professed interests include avoiding diversion
to nonreligious use and ensuring that a multitude of spurious free exercise
claims do not hamstring its enforcement efforts. Given those concerns, I do not
see why Judge Murphy finds it surprising that the extent of nonreligious use is
relevant to the analysis. Indeed, it would be far more surprising if the
differences between street drugs and more "esoteric" ones were irrelevant. See Olsen v. DEA, 878 F.2d 1458, 1464 (D.C. Cir. 1989) (R.
Ginsburg, J.) ("We rest our decision [not to grant an exemption for
religious marijuana consumption] on the immensity of the marijuana control
problem in the United States . . . .").
Finally, the dissent also urges [*81] that the government's interest
in strict compliance with the 1971 United Nations Convention on Psychotropic
Substances, Feb. 21, 1971, 32 U.S.T. 543 (the "Convention") is
sufficiently compelling to outweigh the burden imposed on UDV. The district
court held that the Convention does not apply to the hoasca tea used by UDV. O Centro Espirita Beneficiente Uniao Do
Vegetal v. Ashcroft, 282 F. Supp. 2d 1236, 1269 (D. New Mexico 2002). Judge
Murphy categorically asserts the opposite, based on the "plain language of
the Convention." Opinion of Murphy, J., at 30.
To reverse on the basis of the Convention would require us to go far beyond
what the record can support. After reviewing the initial briefs filed by the
parties, the district court determined that the government's strongest grounds
for prohibiting UDV from using hoasca
were based on concerns about the safety of drinking the tea and the risk of
diversion to non-religious uses. 282 F. Supp. 2d at 1266. The court therefore
limited evidence to those issues. Plaintiffs attempted to present evidence
regarding the interpretation of the Convention by the International Narcotics
Control Board, [*82] the international enforcing agency, including
a letter by the Secretary of the Board stating that hoasca is not controlled under the Convention. The government
objected on the ground that "We are now introducing testimony about
whether or not ayahuasca is controlled under the International Convention. That
is not one of the issues in this hearing." Supp. App. 1634. After
discussion, the district court forbade questioning on the subject, and
plaintiffs were unable to introduce evidence on the interpretation of the
Convention by the Board. For this Court to attempt to interpret a complex
treaty on the basis of its "plain language," without the benefit of
its interpretive history, would be premature.
More to the point, the government utterly failed to carry its statutory burden
(42 U.S.C. § 2000bb-1(b)(2)) of demonstrating that complete prohibition of
hoasca is the "least restrictive means" of furthering its interest in
compliance with the Convention, even assuming the Convention applies. Contrary
to the dissent, neither the Convention's terms nor the practice of its
interpretation is without flexibility when religious and other constitutional
countervailing [*83] interests are implicated. For example, the CSA
provides a mechanism by which the government may protest a scheduling decision
made under Article 2 of the Convention. When the government receives notice of
a scheduling decision pursuant to Article 2 of the Convention, if the
requirements demanded are not met by existing controls, the Secretary of State
may "ask for a review by the Economic and Social Council of the United
Nations" or "take appropriate action under the Convention to initiate
proceedings to remove the drug or substance from the schedules under the
Convention or to transfer the drug or substance to a schedule under the
Convention different from the one specified in the schedule notice." 21
U.S.C. § 811(c)(3)(C)(iii) & (iv). Article 2 of the Convention creates a
process for a signatory state to request a reconsideration of a scheduling
decision already made, and in considering that request, the Commission is
permitted to take into account "economic, social, legal, administrative
and other factors it may consider relevant." Article 2 (1), (5), (6). The
availability of these procedures suggests that compliance with the Convention
is not wholly inconsistent [*84] with the needs of signatory states
to tailor some scheduling decisions to local requirements.
The Convention allows signatory states at the time of signature, ratification,
or accession to make a reservation for indigenous plants traditionally used by
"small, clearly determined groups in magical or religious rites."
Article 32(4). To interpret the Convention rigidly, as having no possibility of
accommodation for new religious groups (or groups newly arriving in the United
States), for which no reservation was sought at the time, raises troubling
constitutional concerns of denominational discrimination. See Olsen, 279 U.S. App. D.C. 1, 878 F.2d 1461. We should not
lightly assume this is the correct interpretation of the Convention.
In the case of peyote, as the district court pointed out, 282 F. Supp. 2d at
1268, the United States permits the exportation of the substance to Native
American Church groups in Canada, despite the fact that exportation of a
Schedule I substance for other than scientific or medical purposes would appear
to violate the Convention. n7 This suggests that, in practice, there is room
for accommodation of the legitimate needs of [*85] religious
minority groups.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 Peyote use by Native American Church groups within the United States is
permitted by an express reservation to the Convention.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
RFRA places the burden on the government to demonstrate that application of the
law to the particular religious exercise is the least restrictive means of
furthering its interest. As far as the government's argument and the record
reveal, the government has undertaken no steps to inquire regarding the status
of hoasca or to work with the
Economic and Social Council or the International Narcotics Control Board to
find an acceptable accommodation. Rather, it has posited an unrealistically
rigid interpretation of the Convention, attributed that interpretation to the
United Nations, and then pointed to the United Nations as its excuse for not
even making an effort to find a less restrictive approach.
To be sure, treaty compliance might well implicate governmental interests
beyond the health and safety interests considered above. For example, if it
could [*86] be shown that if the United States failed to proscribe hoasca, another country would seize upon
that as an excuse to refuse to proscribe another controlled substance of great
importance to our national well-being, that might well constitute a compelling
interest. But there is no way to know whether that is so without asking.
The government submitted the affidavit of one State Department lawyer stating
in general terms that noncompliance with the treaty would interfere with the
ability of the United States to demand cooperation from other nations. But
while some level of deference to Congressional and Executive findings is
appropriate in the context of foreign relations, this affidavit does not
provide any information specific enough to be relevant in assessing the damage
that would flow from an exemption for the UDV. Presumably that lawyer did not
mean to say that all violations, from the smallest infraction to blatant
disregard for the treaty as a whole, are equally damaging to the diplomatic
interests of the United States. He made no mention of whether the International
Narcotics Control Board deems hoasca to be within the Convention or whether
there may be ways to comply with [*87] the Convention without a
total ban. Had the government presented an affidavit about the particular harms
that this particular infraction would cause, it might be a different matter. See Ashcroft, 124 S. Ct. at 2794; Sable Communications v. FCC, 492 U.S.
115, 130, 106 L. Ed. 2d 93 (1989) (dismissing conclusory statements that a
complete ban on dial-a-porn messages was necessary to protect children because
"the congressional record . . . contained no evidence as to how effective or ineffective" less
restrictive alternatives would be).
B
Even if UDV were likely to prevail on the merits, the dissent believes this to
be one of those rare cases in which the balancing of the equities would dictate
that the injunction not issue. See Opinion
of Murphy, J., at 46. The disagreement rests, I think, on whether the statutory
policies and burdens of proof set forth in RFRA should guide our consideration
of each of the four preliminary injunction factors - or are relevant only to
the first, the probability of success on the merits. I believe Judge Murphy's
dissent is wrong to disregard RFRA in balancing the equities. That is not
because RFRA implicitly [*88] modifies the standards that apply to
preliminary injunctions; I agree the normal standards remain in place unless
Congress clearly manifests an intent to modify them. See Weinberger v. Romero- Barcelo, 456 U.S. 305, 320 (1982).
Rather, the point is that the normal standards for injunctive relief require
courts to weigh the private and public interests in free exercise on the one
hand against the government's interests in regulation on the other, and RFRA is
relevant to that weighing. When Congress has expressed its view of the proper
balance between conflicting statutory policies, it is incumbent upon the courts
to give effect to that view:
'Balancing the equities' when considering whether an injunction should issue,
is lawyers' jargon for choosing between conflicting public interests. When
Congress itself has struck the balance, has defined the weight to be given the
competing interests, a court of equity is not justified in ignoring that
pronouncement under the guise of exercising equitable discretion.
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 609-610, 96 L. Ed. 1153 (1952) (Frankfurter, J., concurring).
By "restor[ing" the compelling [*89] interest test of Sherbert v. Verner, 374 U.S. 398, 10 L.
Ed. 2d 965 (1963), and Wisconsin v. Yoder,
406 U.S. 205, 32 L. Ed. 2d 15 (1972), 42 U.S.C. § 2000bb(b)(1), RFRA expressed
Congress's judgment that the free exercise of religion outweighs all but the
most compelling governmental interests. See
42 U.S.C. § 2000bb-1; Yoder, 406
U.S. at 215 ("The essence of all that has been said and written on the
subject is that only those interests of the highest order and those not
otherwise served can overbalance legitimate claims to the free exercise of
religion."). Once the plaintiff has established a prima facie case, RFRA
places on the government the burden of demonstrating that application of the
law is the least restrictive means of furthering its interest. 42 U.S.C. §
2000bb-1(b). n8 It is not that RFRA "legislatively overrules" the
traditional principle that the moving party bears the burden of establishing
the four preliminary injunction factors. See
Opinion of Murphy, J., at 46. Rather, RFRA speaks to the quality of
evidence and nature of the [*90] interest that the government must
put forward. RFRA makes it clear that only demonstrated interests of a
compelling nature are sufficient to justify substantial burdens on religious
exercise. Mere "equipoise" with respect to not-
necessarily-compelling governmental interests is not enough.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 In the free exercise/RFRA context, it is important to note that evidence of
a compelling government interest rebuts the plaintiff's prima facie case not by
disputing the plaintiff's interest in the religious practice but by outweighing
it. Not all burden-shifting regimes share this feature. For instance, in the
Title VII context, once a plaintiff is able to show disparate treatment of a
similarly situated employee of another race, the burden shifts to the employer
to show a nondiscriminatory motive for the differing treatment. To the extent
that an employer makes such a showing, it does not present considerations that outweigh the plaintiff's interest in a
nondiscriminatory workplace; rather, it undercuts
the plaintiff's claim of discrimination. Thus, if an employer's case for a
nondiscriminatory motive is in equipoise, then it follows that the plaintiff's
case for discrimination is also in equipoise. In that context, the dissent's
view of the consequences of equipoise as to the government's showing is
well-founded; in the RFRA context, it seems mistaken.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*91]
Thus, the dissent is wrong to assume that, with the evidence of the
government's interest in "equipoise," the plaintiff "has not
carried its burden of demonstrating that the third and fourth preliminary
injunction factors . . . weigh in its favor." See Opinion of Murphy, J., at 17. The government's evidence, on
this record, demonstrates only that there might
be some adverse health consequences or risks of diversion associated with UDV's
hoasca consumption. See Gov't Br. 45 (describing the
government's interest as an interest in prohibiting substances that are
"just as likely to be dangerous as . . . safe"). But under RFRA, mere
possibilities, based on limited evidence supplemented by speculation, are
insufficient to counterbalance the certain burden on religious practice caused
by a flat prohibition on hoasca. See United States v. Hardman, 297 F.3d
1116, 1130 (10th Cir. 2002) (en banc); Sherbert,
374 U.S. at 407.
In effect, the dissent attempts to make an end run around RFRA's reinstatement
of strict scrutiny by repackaging all of the arguments that would be relevant
to the merits (where the presumption of invalidity would
clearly [*92] apply) as arguments about the equities (where it is
disregarded). That approach is unprecedented. When the government fails to
demonstrate its compelling interest in burdening a constitutional right, courts
routinely find that, in the absence of a compelling justification for
interference, the balance of harms and public interest also favor protecting
the moving party's burdened rights. See,
e.g., Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570, 576
(2d Cir. 2002) (affirming the grant of a preliminary injunction because the
City "had not sufficiently shown
the existence of a relevant law or policy . . . that would . . . justify its
actions in dispersing the homeless from the Church's landings and steps"
(emphasis added)); Jolly v. Coughlin,
76 F.3d 468, 482-83 (2d Cir. 1996) (applying a heightened standard but
nevertheless upholding a RFRA-based preliminary injunction because the
plaintiff had established a prima facie case and the government had not
established that its policy was the least restrictive means of furthering a
compelling interest); Eisenberg ex rel.
Eisenberg v. Montgomery County Public Schools, 197 F.3d 123, 127 n.11, 133
(4th Cir. 1999) [*93] (reversing the denial of a preliminary
injunction because the school district had not presented evidence sufficient to
rebut the strict-scrutiny presumption that race-based decisions are invalid). See also Stuart Circle Parish v. Bd. of
Zoning Appeals, 946 F. Supp. 1225, 1235-36, 1240 (E.D. Va. 1996) (finding
that because plaintiffs demonstrated a substantial likelihood of success on
their RFRA claim, their interest in religious freedom tipped the balance of
harms and the public interest in their favor); Luckette v. Lewis, 883 F. Supp. 471, 483 (D. Ariz. 1995) (balance
of harms weighed sharply in favor of prisoner given that his religious exercise
was burdened and defendants had not demonstrated a countervailing public
interest); Howard v. United States,
864 F. Supp. 1019, 1029 (D. Colo. 1994) (in light of likelihood of success,
public interest in protecting First Amendment rights outweighed any possible
harm to the government); McCormick v.
Hirsch, 460 F. Supp. 1337, 1350 (M.D. Pa. 1978), abrogated on other grounds, see Bakery, Confectionery and Tobacco
Workers' Int'l Union, Local 6 v. NLRB, 799 F. Supp. 507, 511 (E.D. Pa.
1992) [*94] ("When the protection of First Amendment liberties
are [sic] involved, little else need be said of balancing the public interest,
as protection of these rights is the most fundamental."). n9
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 The dissent argues that the right at issue in this case is statutory, rather
than constitutional, making several of the cases cited above inapposite.
Opinion of Murphy, J., at 45-46 n.17. But RFRA dictates that the government
must meet the same exacting standard as when it seeks to justify a burden on a
constitutional right.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
If there was any doubt before, the Supreme Court's recent opinion in Ashcroft v. ACLU, 159 L. Ed. 2d 690, 124
S. Ct. 2783 (2004), forecloses the dissent's approach. Like this case, Ashcroft involved a preliminary
injunction in which the merits were governed by the compelling interest/least
restrictive means test. The issue there was the constitutionality of the
Children's Online Protection Act, ("COPA"), which requires businesses
posting certain sexually explicit content on [*95] the web to
require viewers to submit information verifying their age before they could
access the materials. See id. at
2789-90. The main question was whether that means of keeping the content away
from children was the least restrictive means, as compared with other methods
(prominently, making internet filtering programs more readily available to
parents). As in our case, there was evidence on both sides, and substantial
factual questions remained about the relative effectiveness of the two
alternatives. See id. at 2794. On
that record, the Court found that the plaintiffs were likely to succeed
primarily because the burden of proof was allocated to the government. See id. at 2791, 2793 (noting that
movants had no burden to demonstrate the effectiveness of alternative means of
serving the government's interest; the government bore the burden of proving
that other alternatives were less effective than COPA).
By the dissent's logic, the Court should have gone on to reverse the district
court's preliminary injunction on the theory that with respect to the balance
of harms and public interest prongs, it was not the government but the
plaintiffs who bore the burden of proving [*96] that the COPA regime
was not the least restrictive means of serving the government's interests. In
fact the Court did quite the opposite. In affirming the preliminary injunction,
the Court had this to say about the equities supporting the injunction:
As mentioned above, there is a serious gap in the evidence as to the
effectiveness of filtering software. . . . For us to assume, without proof,
that filters are less effective than COPA would usurp the District Court's
factfinding role. By allowing the preliminary injunction to stand and remanding
for trial, we require the Government to shoulder its full constitutional burden
of proof respecting the less restrictive alternative argument, rather than
excuse it from doing so.
See id. at 2794. The Court thus held
that even with regard to the balance of harms, the government must
"shoulder its full constitutional burden of proof respecting the less
restrictive alternative argument." n10 Id.
Under controlling Supreme Court precedent, therefore, we cannot
"excuse" the government from meeting its burden simply by shifting
the analysis from the likelihood of success to the equities.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 The dissent complains that this passage "does not relate in any
fashion" to the balance of the harms or public interest factors. Opinion
of Murphy, J., at 47. This is not correct. The Court referred to
"important practical reasons to let the injunction stand pending a full
trial on the merits." The first of these was that "the potential
harms from reversing the injunction outweigh those of leaving it in place by
mistake." Ashcroft, 124 S. Ct.
at 2794. But the principal point is what the Court did not do - it did not, as Judge Murphy says we should - treat the
plaintiffs as not having met their burden of proof on the balances of equities
where the same evidence had been held sufficient to establish that they were likely
to prevail on the merits under a compelling interest test.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*97]
C
Even putting aside any special features of RFRA or strict scrutiny more
generally, there is a more basic problem with the dissenters' approach. While
Judge Murphy is correct to insist that UDV carry its burden with regard to each
of the four factors of the preliminary injunction test, he underestimates the
significance of the likelihood of success on the remaining factors, thereby
misconceiving the relationship between the four preliminary injunction factors.
A primary purpose of the balance-of-harms inquiry is to determine the relative
cost of an error favoring one side as compared with an error favoring the other.
See, e.g., Ashcroft, 2004 WL 1439998 at *9 (noting that "the potential
harms from reversing the injunction outweigh those of leaving it in place by
mistake"); Tri- State Generation
& Transmission Ass'n, Inc. v. Shoshone River Power, Inc., 805 F.2d 351,
358 (10th Cir. 1986) ("In essence, it would be easier to correct a mistake
in favor of Tri-State in issuing an injunction than it would be to correct a
mistake in favor of Shoshone and Pacific by not issuing it."). It follows
that the balance- of-harms inquiry depends in part [*98] on the
merits inquiry, since the only way of assessing whose harms are likely to be erroneously imposed is to judge them in
light of the likelihood of success on the merits. Thus, no matter how great the
interim harm to UDV if it is prevented from using hoasca until the final resolution of this case, that harm must be
discounted to the extent that it is likely that UDV will not ultimately prove
entitled to use hoasca; by the same
token, no matter how great the interim harm to the government if it is
wrongfully forced to allow the UDV to use and import hoasca, that harm must be discounted by the likelihood that UDV
will ultimately prevail. Cf. Opinion
of Seymour, J., at 8-9.
Although not always explicitly, courts commonly evaluate the balance of harms
in light of the likelihood of success. See,
e.g., Abbott Labs. v. Mead Johnson
& Co., 971 F.2d 6, 12 & n.2 (7th Cir. 1992); Star Fuel Marts, LLC v. Sam's East, Inc., 362 F.3d 639, 652 (10th
Cir. 2004) (downplaying the harm to the defendant because the defendant had not
rebutted the plaintiff's prima facie case
on the merits, and therefore the preliminary injunction
required [*99] the defendant to do no more than it was legally
obligated to do). It may be possible, as the dissent suggests, for the harm and
public interest factors to favor the party likely to lose on the merits so
strongly that the (likely) losing party should succeed at the preliminary
injunction stage. Such an outcome is highly unlikely, however, when the merits
determination hinges on the strength of the governmental interest. In such
cases, it is to be expected that the merits and the balance of equities would
overlap. If the government's interest is not strong enough to outweigh the
plaintiff's interest in religious exercise for purposes of the merits, it is
highly unlikely to do so for purposes of the balance of harms.
D
Besides insisting that UDV has not met its supposed burden of disproving the
government's interest, Judge Murphy's dissent also suggests several substantive
reasons for finding that the balance of harms favors the government. First, he
relies on the government's general interest in enforcing the law. See Opinion of Murphy, J., at 40-41, quoting New Motor Vehicle Bd. v. Orrin W.
Fox Co., 434 U.S. 1345, 1351, 54 L. Ed. 2d 439(Rehnquist,
Circuit [*100] Justice 1977). However, we must not forget that this
case involves the intersection of two Acts of Congress of equal dignity: RFRA
and the CSA. As a result, the government's interest in complying with the law
cuts both ways: the government has no less interest in obeying RFRA than it has
in enforcing the CSA. Whether the public interest in enforcing the law favors
accommodation under RFRA or strict application of the CSA depends on whether there is a compelling interest that requires
strict enforcement of the latter. It would be circular to rely on that interest
to establish the government's compelling interest in the first place.
The government also stresses its interest in uniform enforcement of the law and
avoiding the burdens of case-by-case management of religious exemptions,
raising concerns that if UDV is allowed an exemption in this case, it will make
enforcement of the CSA (and the Convention) unworkable by encouraging a host of
spurious claims for religious drug use. I find the panel opinion's reasons for
skepticism on this front convincing. See O Centro Espirita Beneficiente Uniao do
Vegetal v. Ashcroft, 342 F.3d
1170, 1186 (10th Cir. 2003). In any [*101]
event, it is most unlikely that those fears will materialize during the
pendency of a preliminary injunction. Assuming the government is entitled to
enforce the CSA, a final judgment in its favor will serve as adequate
discouragement for future claims similar to UDV's. If the government is serious
about the dangers, it can always seek expedited treatment of this case on the
merits, and prove its case to the district court.
Finally, even when the government is able to demonstrate a compelling interest
under RFRA, it remains necessary to establish that there is no other way of
furthering that interest that would have less impact on the religious exercise.
See Yoder, 406 U.S. at 215 (requiring
the government's interest to be one "not otherwise served"); 42
U.S.C. § 2000bb-1(b)(2). Thus, although the parties spend the bulk of their
efforts arguing about whether the government has a compelling interest in
prohibiting UDV's use of hoasca, that
is only part of the analysis. In United
States v. Hardman, when this Court applied RFRA to a statutory scheme that
allowed Native American tribe members to possess eagle parts but denied
access [*102] to other practitioners of Native American religion,
the Court en banc held that the government could not prevail without presenting
evidence about the effects of alternative, less restrictive approaches on the
compelling government interests in question. 297 F.3d at 1132. "We must
first determine where along [the continuum of policy alternatives] the
government's present solution lies, and where other, less restrictive means
would lie." Id. at 1135.
This case, like Hardman, raises the
question of why an accommodation analogous to that extended to the Native
American Church cannot be provided to other religious believers with similar
needs. As the panel majority noted, the apparent workability of the
accommodation for Native American Church peyote use strongly suggests that a
similar exception would adequately protect the government's interests here. See O Centro, 342 F.3d at 1186. The
preliminary injunction issued in this case allows the government some degree of
control over UDV's importation, storage, and use of hoasca. At least to some extent, then, the preliminary injunction
works a compromise, attempting to respond to the [*103] government's
legitimate concerns while still allowing UDV to continue its religious
activity. It is incumbent on the government to show why no such compromise
regime could adequately serve its interests.
E
All told, this is the unusual case in which the plaintiff not only prevails on
each of the four preliminary injunction factors, but does so with sufficient
clarity that a preliminary injunction is warranted even though it would disturb
the status quo. The dissent does not challenge that the plaintiff would suffer
serious and irreparable injury from continued prohibition of its religious
sacrament. With the burden on the government to prove that its interest in
enforcing the CSA against religious hoasca
use is compelling but the evidence in support of that interest no better than
"in equipoise," the plaintiff has also demonstrated a likelihood of
success on the merits. The same state of the record demonstrates conclusively
that the plaintiff prevails on the other two factors. With a proven interest of
high order on one side, and mere uncertainty, or "equipoise," on the
other, the balance of equities is plainly in the plaintiff's favor. And in
light of Congress's determination [*104] that the public interest is
served by accommodating the free exercise of religion except in cases of a
proven compelling governmental interest, the plaintiff prevails on the
"public interest" prong as well.
In conclusion, courts should issue preliminary injunctions that disturb the
status quo only when the traditional balance is strongly in the plaintiff's
favor, but on this record, plaintiff UDV has satisfied that demanding test.
No. 02-2323; O Centro Esprita
Beneficiente Uniao Do Vegetal v. Ashcroft
HARTZ, Circuit Judge, dissenting:
I dissent, with great respect for the opinions that hold otherwise.
I join Part I of Judge Murphy's dissent and Part I of Judge McConnell's
concurrence. I agree that the status quo is an important consideration and that
Judge Murphy has properly analyzed where the status quo lies in this case. I
should add, however, that, as with all balancing tests, our form of words in
expressing the test is of minimal utility. District courts will continue to
consider the factors we list and reach the result they believe to be equitable;
and we, observing proper deference, will generally affirm.
In applying the balancing test, I believe that [*105] the principal
reason for reversing the preliminary injunction is the unlikelihood that UDV
will ultimately prevail on the merits. Applying pre-Smith Supreme Court
precedent (as RFRA requires), it is likely that the ultimate determination will
be that there is a compelling interest in uniform application of the Controlled
Substances Act. See Employment Div. v. Smith, 494 U.S. 872, 905, 108 L. Ed. 2d
876 (1990) (O'Connor, J., concurring). Moreover, it is even more likely to be
determined that there is a compelling interest in full compliance with the 1971
United Nations Convention on Psychotropic Substances, which would be violated
by permitting the UDV's use of hoasca. See O Centro Espirita Beneficiente Uniao
De Vegetal v. Ashcroft, 314 F.3d 463 (10th Cir. 2002).
DISSENTBY: SEYMOUR
DISSENT:
MURPHY, Circuit Judge, joined in
full by EBEL, KELLY, and O'BRIEN,
Circuit Judges, and as to Part I by HARTZ,
McCONNELL, and TYMKOVICH, Circuit Judges, concurring in part and dissenting in
part.
I agree with the per curiam opinion
that a movant for a preliminary injunction must make a heightened showing when
the requested [*106] injunction will alter the status quo. As set
out more fully below, such an approach is completely consistent with the
historic purpose of the preliminary injunction. Accordingly, I join parts I,
II, and III.A of the per curiam
opinion. I must respectfully dissent, however, from the conclusion that O
Centro Espirita Beneficiente Uniao do Vegetal ("UDV") has
sufficiently shown its entitlement to a preliminary injunction prohibiting the
United States from enforcing the Controlled Substances Act ("CSA"),
21 U.S.C. § 801 et seq. As a direct
result of the preliminary injunction embraced by the majority, the United
States is placed in violation of the United Nations Convention on Psychotropic
Substances, Feb. 21, 1971, 32 U.S.T. 543 (hereinafter the
"Convention"). I thus dissent from parts III.B and IV of the per curiam opinion.
I.
A. A Heightened Showing is Appropriate
When the Requested Preliminary Injunction Would Alter the Status Quo
The Supreme Court has observed "that a preliminary injunction is an
extraordinary and drastic remedy, one that should not be granted unless the
movant, by a clear showing, carries
the [*107] burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 138 L. Ed. 2d 162 (1997)
(per curiam) (quotation omitted); accord
SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991)
("As a preliminary injunction is an extraordinary remedy, the right to
relief must be clear and unequivocal." (citation omitted)); United States ex rel. Citizen Band
Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883
F.2d 886, 888-89 (10th Cir. 1989) ("Because it constitutes drastic relief
to be provided with caution, a preliminary injunction should be granted only in
cases where the necessity for it is clearly established."). The Supreme
Court has further indicated that the "limited purpose" of a preliminary
injunction "is merely to preserve the relative positions of the parties
until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 68 L. Ed. 2d 175
(1981). Accordingly, courts should be hesitant to grant the extraordinary
interim relief of a preliminary injunction in any particular case, but
especially so when such an injunction would alter the status quo prior
to [*108] a trial on the merits.
This court's precedents are in harmony with the sentiments expressed by the Supreme
Court in Mazurek and Camenisch. In particular, this court has
identified the following three types of disfavored preliminary injunction and
concluded that a movant must make a heightened showing to demonstrate
entitlement to preliminary relief: "(1) a preliminary injunction that
disturbs the status quo; (2) a preliminary injunction that is mandatory as
opposed to prohibitory; and (3) a preliminary injunction that affords the
movant substantially all the relief he may recover at the conclusion of a full
trial on the merits." SCFC ILC,
936 F.2d at 1098-99. Because each of these types of preliminary injunction is
at least partially at odds with the historic purpose of the preliminary
injunction--the preservation of the status quo pending a trial on the merits--this
court has held that to obtain such an injunction the movant must demonstrate
that "on balance, the four [preliminary injunction] factors weigh heavily
and compellingly in his favor." Id.
at 1099.
The en banc court specifically
reaffirms the central holding in SCFC ILC [*109]
that a movant seeking a preliminary injunction which upsets the status quo must
satisfy a heightened burden. In advocating the abandonment of this requirement,
Judge Seymour suggests that requiring a heightened showing when a requested
preliminary injunction would alter the status quo is inconsistent with the need
to prevent irreparable harm and is inconsistent with the approaches taken by
other circuits. Opinion of Seymour, J., at 4-6. Neither assertion offers a
convincing reason for abandoning the well-reasoned approach set out in SCFC ILC.
It is simply wrong to assert that the application of heightened scrutiny to
preliminary injunctions which alter the status quo is inconsistent with the
purpose of preliminary injunctions. The underlying purpose of the preliminary
injunction is to "preserve the relative positions of the parties until a
trial on the merits can be held." Camenisch,
451 U.S. at 395; see also 11A Charles
Alan Wright et al., Federal Practice and Procedure § 2947, at 123 (2d ed. 1995)
[hereinafter "Wright & Miller"] (noting that the purpose of the
preliminary injunction is to assure that the non-movant does not take
unilateral action which [*110] would prevent the court from
providing effective relief to the movant should the movant prevail on the
merits). Although the prevention of harm to the movant is certainly a purpose
of the preliminary injunction, it is not the paramount purpose. See Wright & Miller § 2947, at 123
(noting that although the prevention of harm to the movant is an important
factor to be considered in deciding whether to grant a preliminary injunction,
the primary purpose for such an order is "the need to prevent the judicial
process from being rendered futile by defendant's action or refusal to
act"). Because a preliminary injunction which alters the status quo is
generally contrary to this traditional purpose, such an injunction deserves
some form of heightened scrutiny. See id.
§ 2948, at 133-35 & n.11 (collecting cases for proposition that "the
purpose of the preliminary injunction is the preservation of the status quo and
that an injunction may not issue if it would disturb the status quo").
Such an approach is supported by strong policy rationales.
Any injury resulting from a preliminary injunction that merely preserves the
status quo is not a judicially inflicted injury. Instead, such
injury [*111] occurs at the hands of a party or other extrajudicial
influence. By contrast, an injury resulting from a preliminary injunction that
disturbs the status quo by changing the relationship of the parties is a judicially inflicted injury. It is
injury that would not have occurred but for the court's intervention and one
inflicted before a resolution of the merits. Because the issuing court bears extra
responsibility should such injury occur, it should correspondingly be
particularly hesitant to grant an injunction altering the status quo unless the
movant makes an appropriate showing that the exigencies of the case require
extraordinary interim relief. It may be small consolation should the issuing
court ultimately resolve the merits in favor of the non-moving party; at that
point the non-moving party has often incurred significant costs as a result of
abiding by the improvident preliminary injunction. n1 A plaintiff who was
willing to live with the status quo before filing its complaint should meet a
higher standard in order to have the court intervene with an injunction that
alters the status quo. Judge Seymour's approach, which seeks to elevate the
importance of irreparable harm [*112] at the expense of the status
quo, is inconsistent with the historic underpinnings of the preliminary
injunction.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n1 See generally Wright & Miller
§ 2947, at 123. According to Professor Wright,
The circumstances in which a preliminary injunction may be granted are not
prescribed by the Federal Rules. As a result, the grant or denial of a
preliminary injunction remains a matter for the trial court's discretion, which
is exercised in conformity with historic federal equity practice. Although the
fundamental fairness of preventing irremediable harm to a party is an important
factor on the preliminary injunction application, the most compelling reason in
favor of entering a Rule 65(a) order is the need to prevent the judicial
process from being rendered futile by defendant's action or refusal to act. On
the other hand, judicial intervention before the merits have been finally
determined frequently imposes a burden on defendant that ultimately turns out
to have been unjustified. Consequently, the preliminary injunction is
appropriate whenever the policy of preserving the court's power to decide the
case effectively outweighs the risk of imposing an interim restraint before it
has done so.
Id. (footnotes omitted).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*113]
Nor is the failure of other courts to adequately distinguish between mandatory
injunctions and injunctions that alter the status quo a sufficient reason to
abandon SCFC ILC. See Opinion of
Seymour, J., at 4 & n.1. In asserting that preliminary injunctions which
alter the status quo should not be an independent disfavored category, Judge
Seymour relies heavily on the fact that in cataloging the types of disfavored
injunctions, no other court has chosen to specifically distinguish between
preliminary injunctions which alter the status quo and preliminary injunctions
which are mandatory. Id. None of the
cases cited by Judge Seymour, however, contain any discussion of this question.
Instead, those cases simply note, almost reflexively, that any preliminary
injunction which alters the status quo is a mandatory injunction and, thus,
subject to heightened scrutiny. Id.
(collecting cases). The reflexive equation of preliminary injunctions which
alter the status quo with mandatory injunctions by the courts cited by Judge
Seymour is simply not a compelling justification to abandon the reasoned
approach from SCFC ILC.
In any event, it is certainly true that courts have
historically [*114] applied a more stringent standard to mandatory
preliminary injunctions for the very reason that those injunctions generally do
alter the status quo. See, e.g., In re
Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, Inc.,
60 F.3d 27, 34 (2d Cir. 1995); Anderson
v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979). In fact, most courts
decide whether a given preliminary injunction is "mandatory" or
"prohibitory" by determining whether or not it alters the status quo.
See, e.g., Tom Doherty Assocs., 60
F.3d at 34; Acierno v. New Castle County,
40 F.3d 645, 647 (3d Cir. 1994); Stanley
v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994); Martinez v. Mathews, 544 F.2d 1233,
1242-43 (5th Cir. 1976). For these courts, then, the question whether an
injunction is mandatory or prohibitory is merely a proxy for the more
significant question whether an injunction alters the status quo. Thus, to the
extent these two categories do overlap, it is indeed strange to keep the proxy
while jettisoning the underlying consideration [*115] giving rise to
that proxy. See Opinion of Seymour,
J., at 4, 9-10 (advocating the abandonment of heightened scrutiny for injunctions
which alter the status quo, while maintaining heightened scrutiny for mandatory
injunctions).
There is good reason, however, to distinguish between mandatory injunctions and
injunctions which alter the status quo and to treat both types as disfavored.
As set out above, "[a] preliminary injunction that alters the status quo
goes beyond the traditional purpose for preliminary injunctions, which is only
to preserve the status quo until a trial on the merits may be had." SCFC ILC, 936 F.2d at 1099. Although
mandatory injunctions also generally
alter the status quo, that is not always the case. It is not at all difficult
to envision situations where a mandatory injunction would preserve the status
quo and a prohibitory injunction would alter the status quo. See Friends for All Children, Inc. v.
Lockheed Aircraft Corp., 241 U.S. App. D.C. 83, 746 F.2d 816, 830 n.21
(D.C. Cir. 1984) (noting that whether a mandatory or prohibitory injunction
will maintain or alter the status quo depends on whether the status quo
is [*116] a "condition of action" or a "condition of
rest"). Without regard to whether a mandatory preliminary injunction
alters the status quo, however, it is still appropriate to disfavor such
injunctions "because they affirmatively require the nonmovant to act in a
particular way, and as a result they place the issuing court in a position
where it may have to provide ongoing supervision to assure the nonmovant is
abiding by the injunction." SCFC ILC,
936 F.2d at 1099. Thus, it is simply incorrect to assert that there is perfect
overlap between these two categories and that the concept of status quo should
be folded into the question whether an injunction is mandatory or prohibitory.
The fact that other courts have failed to recognize these subtle distinctions
is simply no reason to abandon the three artfully drawn categories set out in SCFC ILC.
For these reasons, the court is correct in reaffirming the central holding in SCFC ILC that a movant seeking a
preliminary injunction which upsets the status quo must satisfy a heightened
burden. Nevertheless, the decision to jettison SCFC ILC's "heavily and compellingly" language as the
articulated standard for granting [*117] any of the three types of
disfavored preliminary injunctions is appropriate. It is enough to note that
courts in this Circuit should recognize that each of the three types of
injunction identified above is disfavored and that a request for such an
injunction should be even more closely scrutinized to assure that the
exigencies of the case support the granting of a remedy that is certainly
extraordinary. See Enter. Mgmt.
Consultants, 883 F.2d at 888 (holding that even a traditional injunction,
i.e., an injunction which preserves the status quo, is an
"extraordinary" and "drastic" remedy). Furthermore, because
a preliminary injunction that alters the status quo operates outside the
historic parameters for such interim relief, movants should not be able to rely
on this Circuit's modified- likelihood-of-success-on-the-merits standard. Instead,
in addition to making a strong showing that the balance of the harms tips in
its favor and that the preliminary injunction is not adverse to the public
interest, a movant seeking a preliminary injunction that alters the status quo
should always have to demonstrate a substantial likelihood of success on the
merits. n2
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n2 Judge Seymour is simply incorrect in implying that the application of
heightened scrutiny to preliminary injunctions that alter the status quo is
inconsistent with the need to prevent irreparable harm. Opinion of Seymour, J.,
at 6-7. Instead, such an approach recognizes that preliminary injunctions which
alter the status quo, an unconventional and historically disfavored type of
interim relief, are far more likely to impose untoward costs on the non-moving
party. For that reason, and because of the attendant costs imposed on the
judiciary by such preliminary injunctions, it is appropriate to require that
movants make a heightened showing as a predicate to obtaining a preliminary
injunction which alters the status quo. Such a system is sufficiently flexible
to allow courts to grant a preliminary injunction which alters the status quo
when the harm to the movant is clear, certain, and irreparable; the balance of
harms undoubtedly tips in favor of the movant; and the movant demonstrates a
substantial likelihood of success on the merits.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*118]
B. The Status Quo in This Case is the
Enforcement of the CSA and Compliance with the Convention
The status quo in fact in this case
is the enforcement of the CSA and compliance with the Convention. The record is
clear that both UDV itself and the United States recognized that the
importation and consumption of hoasca
violated the CSA. UDV made a concerted effort to keep secret its importation
and use of hoasca. On the relevant
import forms, UDV officials in the United States generally referred to hoasca as an "herbal tea";
they never called it hoasca or
ayahuasca or disclosed that it contained DMT. UDV president Jeffrey Bronfman
informed customs brokers that the substance being imported was an "herbal
extract" to be used by UDV members as a "health supplement."
Furthermore, in an e-mail drafted by Bronfman, he emphasized the need for
confidentiality regarding UDV's "sessions" involving hoasca: "Some people do not yet
realize what confidentiality is and how careful we need to be. People should
not be talking publicly anywhere about our sessions, where we have them and who
attends them." When UDV attempted to grow psychotria viridis and
banisteriopsis [*119] caapi n3 in the United States, it imported the
seeds and plants "clandestinely," in the words used by UDV, and required
its members to sign confidentiality agreements to keep their attempts secret.
All of these actions by UDV demonstrate a recognition that its importation and
consumption of hoasca violated the
CSA. Likewise, when the United States realized that UDV was importing a
preparation which contained DMT, it seized that shipment and additional
quantities of the preparation found in a search of Bronfman's residence.
Accordingly, although UDV eventually sought a preliminary injunction after the
seizure of the hoasca, at all times
leading up to that event the record reveals that the status quo was the
enforcement of the CSA. Where one party, here UDV, intentionally precludes a
contest by concealing material information, the status quo must be determined
as of the time all parties knew or should have known all material information.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n3 These are the two plants utilized to brew hoasca.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Although [*120] recognizing that UDV "acted in a somewhat
clandestine manner in the course of importing the hoasca and using it in its religious ceremonies," Judge
Seymour nevertheless asserts that UDV's importation and use of hoasca is still the status quo because
UDV's actions were "premised on its firmly held belief that such religious
activity was in fact protected from government interference by its right to the
free exercise of its religion." Opinion of Seymour, J., at 19 n.3. It is
odd, indeed, to assume that UDV thought its actions were entirely lawful and
protected by the Religious Freedom Restoration Act ("RFRA") or the
First Amendment, in light of the fact that all of its actions were taken in
secret. In any event, UDV's reason for doing what it was doing is irrelevant.
It simply cannot be the case that a party can establish the status quo in a
given case through secretive or clandestine activity. There is enough natural
incentive to manipulation in events preceding litigation, and in litigation
itself, without providing judicial endorsement of surreptitious conduct by
wrapping it in a cloak of "status quo." The "last peaceable
uncontested status existing between the parties before [*121] the
dispute developed," 11A Wright & Miller § 2948, at 136, is most surely
the open and notorious actions of the parties before the dispute. Here, it is
uncontested that the open and notorious actions of UDV were a facade of
compliance with the CSA. Thus, the status quo in this case is the government's
enforcement of the CSA.
What is most strange about the approach advocated by Judge Seymour is its
apparent reliance on the legal rights of the parties in arriving at the status
quo in this case. Although disclaiming such an approach, Opinion of Seymour,
J., at 18, Judge Seymour specifically references the parties' legal rights in
determining the status quo in this case. Id.
("We are faced with a conflict between two federal statutes, RFRA and the
CSA, plus an international treaty, which collectively generate important
competing status quos."). If the status quo is both parties exercising
their legal rights, but the mutual and contemporaneous exercise of those rights
is factually impossible, then the status quo must instead be the exercise of
legal rights by only one party. Judge Seymour has not cited a single case to
support the assertion that status quo is determined by
reference [*122] to a party's legal rights. Furthermore, such an
approach is clearly inconsistent with this Circuit's historic understanding of
what constitutes the status quo. SCFC ILC,
936 F.2d at 1100 ("The status quo is not defined by the [parties']
existing legal rights; it is defined
by the reality of the existing status
and relationships between the parties, regardless of whether the existing
status and relationships may ultimately be found to be in accord or not in
accord with the parties' legal rights."). Finally, such an approach is
completely unhinged from the reality of the parties' extant relationship and
from the historic purposes of the preliminary injunction. For instance, under
Judge Seymour's view of what constitutes the status quo, it would not be
determinative had the government at first knowingly acquiesced in UDV's
consumption of hoasca, believing that
such consumption was protected by RFRA, before eventually changing tack and
deciding to enforce the CSA. Instead, under Judge Seymour's approach, a
relevant consideration for status quo purposes is whether the government was at
all times legally entitled to enforce the CSA. n4 This is clearly a
question [*123] of whether UDV is likely to prevail on the merits.
Thus, if a party is likely to prevail on the merits, Judge Seymour would label
that merits analysis the status quo and then use it a second time to reduce the
movant's burden on the final three preliminary injunction factors. Such an
approach lacks logical moorings.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n4 Likewise, envision two parties to a long-term contract. For a number of
years both parties have operated with an identical understanding of a key
provision of the contract. Party A suddenly changes course and adopts a
different view of the contract. Facing irreparable injury, party B brings a
declaratory judgment action and seeks a preliminary injunction to preserve the
status quo pending resolution of the suit. Under Judge Seymour's approach, the
parties' course of conduct would be irrelevant to the question of status quo.
Instead, the status quo would be determined by the merits of the parties' legal
assertions. That is, if the district court determined on a preliminary and
incomplete record that party A was likely to prevail on the merits, the status
quo would be party A's revised interpretation of the contract. Such an approach
is surely at odds with any basic understanding of what constitutes the status
quo.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*124]
C. Conclusion
In sum, a heightened standard is consistent with the historical underpinnings
of the preliminary injunction and is supported by persuasive policy rationales.
Furthermore, this court's delineation in SCFC
ILC of three types of disfavored preliminary injunction is well-reasoned
and consistent with the historic purpose of the preliminary injunction; SCFC ILC should not be completely
abandoned simply because other courts have chosen a different course. The
status quo in this case is the government's enforcement of the CSA and
compliance with the Convention. Accordingly, when analyzing whether UDV is entitled
to its requested preliminary injunction, this court will recognize that the
requested injunction is disfavored and more closely scrutinize the request to
assure that the exigencies of the case support the granting of a particularly
extraordinary remedy. n5
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n5 As noted in the panel dissent, because the district court did not recognize
that the requested preliminary injunction would change the status quo, it did
not subject UDV's request to any special scrutiny. O Centro Espirita Beneficiente
Uniao do Vegetal v. Ashcroft,
342 F.3d 1170, 1190 (10th Cir. 2003) (Murphy, J., dissenting). The failure of the district court to apply the correct standard in
evaluating UDV's request for a preliminary injunction amounts to an abuse of
discretion. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.3d 1096, 1100 (10th Cir.
1991). Nevertheless, because the record on appeal is
sufficiently well developed, it is appropriate for this court to determine in
the first instance whether UDV has met the requisite burden. O Centro Espirita, 342 F.3d at 1190
(Murphy, J., dissenting) (citing SCFC ILC,
936 F.2d at 1100).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*125]
II.
Based heavily on the conclusion that UDV has demonstrated a substantial
likelihood of success on the merits, a majority of the en banc court resolves that the district court did not err in
granting UDV a preliminary injunction. In contrast to the conclusions of the
majority, however, UDV has not demonstrated a substantial likelihood of success
on the merits. First, RFRA was intended to restore the compelling interest test
that existed before Employment Division
v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990). 42 U.S.C. § 2000bb(b)(1).
Employing that test, courts routinely rejected religious exemptions from laws
regulating controlled substances and have continued to do so with RFRA. Second,
one only need look to the congressional findings set out in the CSA to see that
the United States carried its burden of demonstrating that the prohibition
against importing or consuming hoasca
furthers its compelling interests in protecting the health of UDV members and
preventing diversion of hoasca to
non-religious uses. Finally, compliance with the Convention, which results in
international cooperation in curtailing illicit drug [*126]
trafficking, is certainly a compelling interest. The record further indicates
that absent strict compliance with the Convention, the United States' efforts in
this regard would be hampered.
Quite aside from the question of whether UDV has demonstrated it is
substantially likely to prevail on the merits, UDV has not demonstrated its
entitlement to a preliminary injunction. In connection with the risk to the health
of UDV members and the risk to the public from diversion of hoasca, the district court found the
evidence respectively "in equipoise" and "virtually
balanced." The district court did not proceed to even address the harm to
the government and the public interest resulting from violations of the
Convention necessitated by its injunction. With the evidence in this state, UDV
has not carried its burden of demonstrating that the third and fourth
preliminary injunction factors--that the threatened injury to it outweighs the
injury to the United States under the preliminary injunction and that the
injunction is not adverse to the public interest--weigh in its favor thereby
justifying even a preliminary injunction that does not alter the status quo.
Superimposing the more appropriate [*127] heightened scrutiny for a
disfavored injunction altering the status quo upon the evidence in this case
renders the preliminary injunction even more decidedly erroneous.
A. Substantial Likelihood of Success on
the Merits
1. Controlled Substances Act
RFRA was never intended to result in the kind of case-by-case evaluation of the
controlled substances laws, and the scheduling decisions made pursuant to those
laws, envisioned by the majority. In light of the specific findings set out in
the CSA with regard to the drug at issue here, it is particularly improper for
the court to assume such a function in this case. This is true even though
limited religious use of another drug, peyote, has been allowed pursuant to
statute, 42 U.S.C. § 1996a, and before that, pursuant to regulation, 21 C.F.R.
§ 1307.31. Apart from the fact that courts should not direct the nation's drug
policy, courts simply lack the institutional competence to craft a set of
religious exemptions to the uniform enforcement of those laws. In contrast to
the majority's conclusion, RFRA does not compel such an approach.
To the extent that RFRA requires the [*128] government to prove a
compelling governmental interest and least restrictive means concerning the ban
on DMT, see 42 U.S.C. § 2000bb-1(b),
the government need turn only to express congressional findings concerning
Schedule I drugs. Congress specifically found that these drugs have a high
potential for abuse, have no currently accepted medical use, and are not safe
for use under any circumstances. 21 U.S.C. § 801(2) ("The illegal
importation, manufacture, distribution, and possession and improper use of
controlled substances have a substantial and detrimental effect on the health
and general welfare of the American people."); id. § 801a(1) ("The Congress has long recognized the danger
involved in the manufacture, distribution, and use of certain psychotropic
substances . . ., and has provided strong and effective legislation to control
illicit trafficking and to regulate legitimate uses of psychotropic substances
in this country."). As to the specific drug at issue here, DMT, Congress
has found that it has high potential for abuse and is not safe to consume even
under the supervision of medical personnel. Id.
§ 812(b)(1) [*129] (setting out findings required for placement of
a drug on Schedule I); id. § 812(c),
sched. I(c)(6) (including DMT, dimethyltryptamine, within Schedule I). These
congressional findings speak to a need for uniformity in administration given
the serious problem of drug abuse in the United States. See Smith, 494 U.S. at 905 (O'Connor, J., concurring); United States v. Israel, 317 F.3d 768,
771 (7th Cir. 2003).
RFRA ought not result in a case-by-case redetermination of whether these
findings are correct. Judge McConnell takes the opposite position--that
congressional findings and scheduling (indeed Congress scheduled DMT) are not
enough--stating "such generalized statements are of very limited utility
in evaluating the specific dangers of this
substance under these circumstances,
because the dangers associated with a substance may vary considerably from
context to context." Opinion of McConnell, J., at 25. Judge McConnell's
opinion suffers from two serious defects.
First, the opinion is simply wrong in asserting that the findings in the CSA
are too generalized to have any utility in determining whether the use of DMT
in a religious setting [*130] is dangerous to the health of UDV
practitioners. On this point, Congress could not have been more clear. DMT has
a high potential for abuse and is not safe to consume under any circumstances, even including under the supervision of
medical personnel. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6).
Second, under the approach advocated by Judge McConnell, whether this court is
talking about drinking hoasca tea
(ingesting DMT), smoking marijuana, or shooting heroin (Judge McConnell's
example), the government will be required to investigate religious use and
determine whether the health risks or possibility of diversion would outweigh
free exercise concerns. Such a reading of RFRA is difficult to reconcile with
RFRA's purpose of merely reviving the pre-Smith
compelling interest test. 42 U.S.C. § 2000bb(b)(1). Congress viewed that test
as applied in prior federal rulings as "a workable test for striking
sensible balances between religious liberty and competing prior governmental
interests." Id. § 2000bb(a)(5).
Employing that test, courts routinely rejected religious exemptions from laws
regulating controlled substances. See
[*131] United States v.
Greene, 892 F.2d 453, 456-57 (6th Cir. 1989); Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C. Cir. 1989); Olsen v. Iowa, 808 F.2d 652, 653 (8th
Cir. 1986); United States v. Rush,
738 F.2d 497, 512-13 (1st Cir. 1984); United
States v. Middleton, 690 F.2d 820, 824 (11th Cir. 1982). They have
continued to do so with RFRA. See Israel,
317 F.3d at 772; United States v. Brown,
No. 95-1616, 1995 WL 732803, at *2 (8th Cir. Dec. 12, 1995) (per curiam); United States v. Jefferson, 175 F. Supp.
2d 1123, 1131 (N.D. Ind. 2001). Though these cases involve marijuana, the same
result should obtain in this case. n6
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n6 Judge McConnell asserts that these precedents provide no insight into the
proper result in this case because the use of DMT (presumably only that DMT
consumed in the form of hoasca) is
not in widespread use and its sacramental use is "tightly
circumscribed." Opinion of McConnell, J., at 21-22. Judge McConnell's view
of religious freedom under RFRA is novel and problematic. Under his view, small
religious groups are free to use "sacramental drugs," as long as
those "sacramental drugs" are esoteric and are not used too
frequently. Once the religious group becomes too successful at attracting
adherents, its chosen "sacramental drug" becomes popular with the
public at large, or it decides that its sacrament must be consumed too
frequently, the government's interest becomes paramount. Unfortunately, he cites
nothing from the legislative history of RFRA or from pre-Smith law to support the notion that the government has a lesser
interest in regulating the sacramental drug use of small religious groups than
it does in regulating the sacramental drug use of larger religious groups.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*132]
Judge McConnell's view of how RFRA operates seems to overlook events leading up
to the passage of RFRA. It is certainly true, as Judge McConnell notes, that
RFRA was passed in response to the Supreme Court's decision in Smith and that Smith did happen to involve the sacramental use of peyote. Opinion
of McConnell, J., at 21 ("The impetus for enactment of RFRA was the
Supreme Court's decision in a case involving the sacramental use of a
controlled substance."). Judge McConnell is wrong to imply, however, that
Congress intended to alter the ultimate outcome of that case (states may,
consistent with the constitution, prohibit all uses, both religious and
non-religious, of peyote), as opposed to altering the analytical model set out
in that case (no right in the Free Exercise Clause to avoid neutral laws of
general application). Opinion of McConnell, J., at 21-23. A review of the
findings accompanying RFRA makes clear that Congress was concerned with the
latter, not the former. n7 The procedural history preceding the enactment of
RFRA does not support Judge McConnell's assertion that this court is free to
ignore the congressional findings in the CSA in resolving UDV's RFRA claim.
[*133]
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n7 The Congressional findings accompanying RFRA provide as follows:
The Congress finds that--
(1) the framers of the Constitution, recognizing free exercise of religion as
an unalienable right, secured its protection in the First Amendment to the
Constitution;
(2) laws "neutral" toward religion may burden religious exercise as
surely as laws intended to interfere with religious exercise;
(3) governments should not substantially burden religious exercise without
compelling justification;
(4) in Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876 (1990) the
Supreme Court virtually eliminated the requirement that the government justify
burdens on religious exercise imposed by laws neutral toward religion; and
(5) the compelling interest test as set forth in prior Federal court rulings is
a workable test for striking sensible balances between religious liberty and
competing prior governmental interests.
42 U.S.C. § 2000bb(a).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -
Equally [*134] unconvincing is Judge McConnell's attempt to minimize
the government's interest in the uniform enforcement of the CSA. Unlike
compulsory education for an additional two years, the interest in enforcement
of the nation's drug laws as prescribed by Congress is one of the highest
order. Wisconsin v. Yoder, 406 U.S.
205, 215, 32 L. Ed. 2d 15 (1972) ("The essence of all that has been said
and written on the subject is that only those interests of the highest order
and those not otherwise served can overbalance legitimate claims to the free
exercise of religion."). It directly affects the health and safety of
American citizens. Unlike the protection of bald and golden eagle populations,
the regulation of controlled substances can mean the difference between human
life and death, and a court should not be second-guessing legislative and
administrative determinations concerning drug scheduling based upon the record
we have in this case. See United States
v. Szycher, 585 F.2d 443, 444-45 (10th Cir. 1978); see also Touby v. United States, 500 U.S. 160, 162-163, 114 L. Ed.
2d 219 (1991) (discussing time- consuming procedural requirements
involved [*135] in drug scheduling). For these reasons, Judge
McConnell's reliance on Yoder and Hardman is simply misplaced. Opinion of
McConnell, J., at 23-24, 44-45.
Judge McConnell is likewise wrong to assert that the Attorney General has the
raw power to grant religious exemptions from the Controlled Substances Act
under the guise that it "is consistent with public health and
safety." 21 U.S.C. § 822(d) (waiving registration requirements for certain
manufacturers, distributors and dispensers if consistent with public health and
safety); Olsen, 878 F.2d at 1466 app.
(DEA Final Order) ("There is no mechanism for an exemption to scheduling
for religious purposes."). The government's regulatory exemption for
peyote, 21 C.F.R. § 1307.31, later enacted by statute, 42 U.S.C. § 1996a, was
at all times a product of congressional will. See Rush, 738 F.2d at 513 (noting the "sui generis legal status of the American Indians"). The panel
opinion recognized this when it rejected an equal protection argument that
because the Native American Church's use of peyote is protected, so too
should [*136] be the use of hoasca.
See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1186 n.4 (10th Cir. 2003). The panel relied upon Peyote
Way Church of God v. Thornburgh, 922 F.2d 1210, 1216 (5th Cir. 1991), which
held that an exemption for the Native American Church members to use peyote was
rationally related to the government's trust responsibility to preserve Native
American culture. To read the exemption for the Native American Church as an
indication that Congress and the Executive have not precluded "a
particularized assessment of the risks involved in specific sacramental
use" of controlled substances, Opinion of McConnell, J., at 25-27, proves
too much--the concurring opinion can point to no other controlled substance
receiving like treatment.
The CSA envisions careful scheduling of substances. See 21 U.S.C. § 811(c) (listing eight factors which Attorney
General must consider before adding or removing a substance from schedules); id. § 812(b) (findings necessary for
adding a substance to a schedule); id.
§ 811(a) (requirement of notice and a hearing before Attorney General may
add [*137] or remove a substance from schedule). It also envisions
medical and scientific uses of controlled substances in the public interest and
consistent with public health and safety; "neither manufacturing,
distribution or dispensing contemplates the possession of controlled substances
for other than legitimate medical or research purposes." Olsen, 878 F.2d at 1466 app. (DEA Final
Order); see also 21 U.S.C. §
823(a)-(b). Finally, the CSA allocates the burden of production in favor of the
government: in any proceeding brought by the government under Title 21, the
burden of going forward with evidence of any exemption or exception falls on
the person claiming its benefit. 21 U.S.C. § 885(a)(1) (government is not
required to negative any exemption or exception).
The careful approach of the CSA should be contrasted with that of this court.
Although this court recognizes that "the interests of the government as
well as the more general public are harmed if the government is enjoined from
enforcing the CSA against the general importation and sale of street drugs, or
from complying with the treaty," it then characterizes
this [*138] case as one "about importing and using small
quantities of a controlled substance in the structured atmosphere of a bona
fide religious ceremony." Opinion of Seymour, J., at 22-23. Can the free
exercise of religion under RFRA really turn on whether the adherent has a
religious affinity for street drugs or more esoteric ones? n8
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 As noted above, Judge McConnell suggests that it can. According to his
opinion, the strength of the government's interest in avoiding diversion of a
controlled substance and enforcing the CSA will vary under RFRA depending on
how esoteric the drug is, how often the drug is taken as a sacrament, the size
of the religious group, and whether the drug is consumed in a traditional or
non- traditional fashion. Opinion of McConnell, J., at 21-22, 27-28. With
regard to this particular case, Judge McConnell presumes that in proscribing
DMT Congress was only concerned with it being taken intravenously or being
inhaled, not with oral ingestion. Id.
at 27. No evidence supports this. In United
States v. Green, 548 F.2d 1261 (6th Cir. 1977), a DEA chemist qualified as
an expert witness testified to the hallucinogenic effects of DMT and its
similarity in this respect to LSD, its dangerousness, and potential for abuse. Id. at 1269; see also People v. Saunders, 187 Ill. App. 3d 734, 543 N.E.2d 1078,
1080, 135 Ill. Dec. 510 (Ill. App. Ct. 1989) (psychiatrist testimony that DMT
is an hallucinogen and similar to LSD). Though the court reversed the
conspiracy to manufacture convictions in Green
because it found that such testimony had minimal probative value and was
prejudicial concerning the conspiracy charge, the court noted that "such
facts may be highly relevant is assessing the need for controlling the
drug." Green, 548 F.2d at 1270.
Other DMT prosecutions may be found in United
States v. Ling, 581 F.2d 1118 (4th Cir. 1978); United States v. Noreikis, 481 F.2d 1177 (7th Cir. 1973); United States v. Moore, 452 F.2d 569
(6th Cir. 1971). It is also noteworthy that New Mexico proscribes possession
and possession with intent to distribute DMT (dimethyltryptamine). See N.M. Stat. Ann. §§ 30-31-6(C)(6),
30-31-20(B), 30- 31-23(D).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*139]
In light of the congressional purpose behind RFRA of reinstating the pre- Smith compelling interest test, 42
U.S.C. § 2000bb(b)(1), the routine rejection of religious exemptions from drug
laws in the pre-Smith era, and the
congressional findings undergirding the placement of DMT among the most
dangerous and addictive of drugs (i.e., Schedule I substances), UDV has failed
to demonstrate that it is likely to succeed on the merits of its claim that
RFRA entitles it to freely import and dispense hoasca.
2. United Nations Convention on
Psychotropic Substances
The United States argues convincingly that a preliminary injunction requiring
it to violate the Convention could seriously impede its ability to gain the
cooperation of other nations in controlling the international flow of illegal
drugs. See 21 U.S.C. § 801a(1)
("Abuse of psychotropic substances has become a phenomenon common to many
countries . . . and is not confined to national borders. It is, therefore, essential
that the United States cooperate with other nations in establishing effective
controls over international traffic in such substances."). n9
The [*140] district court erroneously concluded that the Convention
did not cover hoasca. Judge McConnell
does not appear to directly address the merits of the district court's
conclusion, instead concluding that the government has failed to carry its
burden under RFRA of demonstrating narrow tailoring. Opinion of McConnell, J.,
at 29-33. Judge Seymour, on the other hand, takes an entirely different tack.
In her separate opinion, she asserts that because the Convention includes a
provision allowing "signatory nations to seek an exemption from the treaty
for indigenous plants containing prohibited substances 'traditionally used by
certain small, clearly determined groups in magical or religious rites,'"
the government's "argument that it will be significantly harmed by a
preliminary injunction temporarily restraining it from enforcing the treaty
against the UDV does not ring entirely true." Opinion of Seymour, J., at
25. The district court, Judge McConnell, and Judge Seymour are all incorrect.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 As was true of the panel majority, Judge Seymour asserts that the Convention
"must be read in light of RFRA and the religious use of the controlled
substance here." Opinion of Seymour, J., at 24 & n.5 (citing O Centro Espirita, 342 F.3d at 1183-84).
As noted in the panel dissent, such an assertion could be read for the
following two disturbing propositions: (1) the government's interest in
complying with its obligations under the Convention is not compelling because
these obligations conflict with the government's obligations under RFRA; and
(2) because RFRA was enacted after the Convention was ratified, the Convention
is nullified to the extent it conflicts with RFRA. O Centro Espirita, 342 F.3d at 1191 n.4 (Murphy, J.,
dissenting). The dissent further explained why both
propositions are incorrect as a matter of law. Id. Unfortunately, Judge Seymour has carried the panel's error
forward, again intimating that the terms of the Convention have somehow been
amended by RFRA. For those reasons set out in the panel dissent, Judge Seymour
is wrong in asserting that RFRA has displaced or amended the Convention. Id.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*141]
For those reasons set out in the panel dissent, hoasca is a preparation containing a Schedule I substance covered
by the Convention. O Centro Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting).
Article 7 of the Convention obligates signatory nations
to prohibit all uses of Schedule I substances and to prohibit the import and
export of those substances. Convention, supra,
at 1, art. 7, 32 U.S.T. 543. The congressional findings in 21 U.S.C. § 801a(1)
make clear that international cooperation and compliance with the Convention
are essential in providing effective control over the cross-border flow of such
substances. In addition, the record contains the declaration of Robert E.
Dalton, a State Department lawyer for the Treaty Affairs Office. Dalton's
declaration asserts that the need to avoid a violation of the Convention is
compelling and that a violation of the Convention would undermine the United
States' role in curtailing illicit drug trafficking. It appears that the Dalton
declaration is unopposed. In light of the plain meaning of the Convention, the
congressional findings on the importance of cooperation, and the [*142]
Dalton declaration, UDV has not demonstrated a substantial likelihood that it
will prevail on the merits of its RFRA claim.
In his separate opinion, Judge McConnell asserts that (1) the government
deprived this court of "evidence" necessary to interpret the Convention
and (2) the government failed to demonstrate that strictly prohibiting the
import and consumption of hoasca is
the least restrictive means of furthering its interest in complying with the
Convention. Opinion of McConnell, J., at 29, 30-33. Judge McConnell's
assertions are flawed in several respects.
First and foremost, the interpretation of the Convention is a question of law. See, e.g., Ehrlich v. Am. Airlines, Inc.,
360 F.3d 366, 370 (2d Cir. 2004) (holding that proper interpretation of an
international treaty is a question of law subject to de novo review); United
States v. Garrido-Santana, 360 F.3d 565, 576- 77 (6th Cir. 2004) (same); United States v. Al-Hamdi, 356 F.3d 564,
569 (4th Cir. 2004) (same); Smythe v.
United States Parole Comm'n, 312 F.3d 383, 385 (8th Cir. 2002) (same).
Here, the district court unequivocally concluded that the [*143]
Convention did not apply to hoasca.
For those reasons set out in the panel dissent, the district court's legal
conclusion is erroneous. O Centro Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting).
That the district court did not hold a hearing on this
question, does not foreclose this court from recognizing the district court's
legal error. When interpreting a treaty this court must "first look to its
terms to determine its meaning." United
States v. Alvarez-Machain, 504 U.S. 655, 663, 119 L. Ed. 2d 441 (1992). As
set out in the panel dissent, and as elaborated supra, the plain language of the Convention makes clear that all
signatories must prohibit the international trafficking of hoasca.
Based on its erroneous legal conclusion that the Convention did not apply to hoasca, the district court precluded the
government from presenting evidence regarding the Convention at the evidentiary
hearing. In a letter to the parties, the district court indicated as follows:
"I have reviewed the parties' briefs on [UDV's] Motion for Preliminary
Injunction. I believe that it will be necessary to hold an evidentiary hearing
on the following [*144] factual issues: 1) the health risks
associated with the ceremonial use of hoasca; 2) the potential for diversion of
hoasca to non-ceremonial use . . . ." Of course, as noted above, whether hoasca is covered by the Convention is a
question of law for the court to decide, not a question of fact like those
questions identified by the district court in its letter. Thus, it is strange
to assert, as does Judge McConnell, that it would be premature to reach this
issue because the district court did not hold an evidentiary hearing on the
matter. Opinion of McConnell, J., at 29.
Nor is it altogether accurate to assert that it was the defendants who opposed
the introduction of evidence on this question at the hearing. Id. Judge McConnell asserts that UDV
"attempted to present evidence regarding the interpretation of the
Convention by the International Narcotics Control Board [("INCB")],
the international enforcing agency, including
a letter by the Secretary of the Board stating that hoasca is not controlled
under the Convention." Id. (emphasis
added). Judge McConnell makes it appear that UDV sought to produce multiple
items of evidence, only one component of which was a letter [*145]
from the Secretary of the INCB. In fact, UDV merely sought to question a
witness about the contents of Plaintiff's Exhibit 54, a letter from the
Secretary of the INCB. That letter had already been admitted into evidence and
used by both UDV and the government in questioning witnesses regarding the
efficacy of the control measures for Schedule I and II drugs under the
Convention. Furthermore, as noted by the government below, there are serious
questions as to the relevance of the Secretary's opinion regarding whether hoasca is covered by the Convention.
Judge McConnell further asserts that based on a narrow objection by the United
States, the district court excluded the evidence, depriving this court of
"interpretive history" necessary to a resolution of this appeal. n10
It is far from clear, however, that Plaintiff's Exhibit 54 is as important as Judge
McConnell would assume, since neither party saw fit to include it in the record
on appeal. Nor is it accurate to assert that the sole basis of the government's
objection to the line of questioning was that the district court had not asked
the parties to present evidence on the issue. Opinion of McConnell, J., at 29.
Instead, the [*146] government objected on multiple grounds: (1) the
questions were beyond the scope of redirect examination; (2) the letter was
legally irrelevant; (3) the district court had previously informed the parties
that no evidence would be taken on the Convention; and, most importantly, (4)
whether hoasca is covered by the
Convention was a legal question for the court to decide. n11 Taken in context,
then, it is not appropriate to hold the government responsible, as does Judge
McConnell, for the district court's failure to hold a hearing on whether
compliance with the Convention is a compelling governmental interest. Id.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 According to Judge McConnell,
The government objected on the ground that "We are now introducing
testimony about whether or not ayahuasca is controlled under the International
Convention. That is not one of the issues in this hearing." After
discussion, the district court forbade the questioning on the subject, and
plaintiffs were unable to introduce evidence on the interpretation of the
Convention by the Board. For this Court to attempt to interpret a complex
treaty on the basis of its "plain language," without the benefit of
its interpretive history, would be premature."
Opinion of McConnell, J., at 29 (record citation omitted). [*147]
n11 During the discussion on whether the questioning should be allowed, counsel
for the government stated as follows:
Objection, Your Honor. We are now introducing testimony about whether or not
ayahuasca is controlled under the International Convention. That is not one of
the issue in this hearing.
. . . .
Your Honor, the person who introduced that exhibit was plaintiffs' counsel, who
introduced it for the purpose of talking about the effectiveness of controls. I
also was talking about the effectiveness of Schedule I and II controls. I did
not talk about the applicability of the treaty to ayahuasca. That is not one of
the issues here. That is a legal issue, and that is up to Your Honor to decide.
. . .
. . . .
Your Honor, we did not just now talk about which substances were controlled in
the Convention. When I went through this report, it was to rebut statements
[plaintiffs' counsel] made from the report yesterday about the effectiveness of
the controls. That is the only reason.
The reason why we should not be talking about this today is because it is not
an opinion of the INCB. The secretary of the board is not a voting member. The
government does not agree or accept that the INCB doesn't control ayahuasca
under the Convention. The INCB does not have the authority to determine what is
controlled under the Convention. This is an entirely separate issue. It's a legal
issue for another day. And this does not relate to diversion or anything I
talked about just now.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*148]
Nor is it appropriate to fault the government for failing to demonstrate that
strictly prohibiting the importation and consumption of DMT, in the form of hoasca, is the least restrictive way to
further the government's interest in complying with the Convention. Opinion of
McConnell, J., at 30. The problem, of course, is that the district court
short-circuited the government's ability to present evidence on this particular
question when it concluded that the Convention did not apply to hoasca. Under these circumstances, it
seems strange to punish the government for this purported evidentiary
deficiency. As we have it, the Dalton declaration is the only evidence in the
record on the question and is uncontradicted. With the record in this state,
UDV has failed to demonstrate a substantial likelihood of success on the
merits. n12
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n12 Even if Judge McConnell were correct that the record is too truncated to
reach a decision on whether the government has advanced a compelling interest
in complying with the Convention and that prohibition on the import and
consumption of hoasca is the most
narrowly tailored means of advancing that compelling interest, however, the
more appropriate course of action would be to remand to the district court for
further development of the record.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*149]
In response, Judge McConnell envisions an elaborate process whereby, to
demonstrate narrow tailoring, the government is obligated to request that DMT
be removed from the schedule of drugs covered by the Convention. Opinion of
McConnell, J., at 30-31. That is, until the government seeks to have DMT
removed from coverage by the Convention, it cannot demonstrate that
"strict" prohibitions against the import of DMT are the least restrictive
means of advancing its interest in complying with the Convention. It is worth
noting at the outset that this argument is not advanced on appeal by UDV. In
any event, Congress has specifically found that DMT is a highly dangerous and
addictive substance. It is difficult to see how asking that DMT be removed from
the schedule of drugs covered by the Convention advances the government's
interests in any way. To the extent that Judge McConnell is implying that the
government could seek an exemption allowing importation into and consumption of
DMT in the United States, whether or not that DMT came in the form of hoasca, while the remaining signatories
remain bound by the terms of the Convention to prevent international
trafficking in DMT, his assertion [*150] finds absolutely no support
in the language of Article 2. There is simply nothing in that particular
Article allowing signatory nations to pick and choose which of the Scheduled
drugs they will criminalize. It is certainly true that signatory nations can
object to the scheduling of new psychotropic drugs and can ask that drugs
already scheduled be reclassified. Opinion of McConnell, J., 30-31. Those
provisions do not, however, allow for a single nation opt-out; instead, they
establish the schedule of drugs that all signatory nations will be obligated to
criminalize. It is incongruous to obligate the government to seek to remove DMT
from the coverage of the Convention in order to demonstrate that its efforts to
restrict the importation and consumption of DMT are the least restrictive means
of complying with the Convention.
Judge Seymour does not endorse the district court's conclusion that the
Convention does not apply to hoasca.
Instead, she asserts that the availability of the exemption in Article 32 of
the Convention demonstrates that no significant harm will flow to the
government from the injunction. Opinion of Seymour, J., at 24-25; see also Opinion of McConnell, J.,
[*151] at 31-32 (asserting that the failure of the government to
seek a reservation under Article 32(4) on behalf of UDV demonstrates the
government failed to prove that the strict prohibition against the importation
and consumption of hoasca is the
least restrictive means of furthering its interest in complying with the
Convention). What Judges Seymour and McConnell fail to acknowledge, however, is
that the exemption set out in Article 32(4) allows signatory nations to make a
reservation as to all of the provisions of Article 7, except for the provisions of Article 7 prohibiting the international
trafficking of psychotropic substances. Article 32(4) specifically provides
as follows:
A State on whose territory there are
plants growing wild which contain psychotropic substances from among those in
Schedule I and which are traditionally used by certain small, clearly
determined groups in magical or religious rites, may, at the time of signature,
ratification or accession, make reservations concerning these plants, in
respect of the provisions of article 7, except
for the provisions relating to international trade.
Convention, supra, at 1, art. 32(4),
32 U.S.T. 543 [*152] (emphasis added). In light of this very
specific language, it is not possible to treat the exemption set out in Article
32 as diminishing the significant injury to the government flowing from an
injunction mandating that the government allow the importation of hoasca.
B. Balance of Harms and Public Interest
For those reasons set out above, UDV has not demonstrated a substantial
likelihood of success on the merits of its RFRA claim. This is especially true
in light of the heightened burden on UDV to demonstrate its entitlement to a
preliminary injunction that upends the status quo. Independent of the question
of likelihood of success on the merits, however, UDV has not demonstrated that
its harm outweighs the harm flowing to the government as a result of the
preliminary injunction or that the preliminary injunction is not adverse to the
public interest.
RFRA provides that once a person proves that a law substantially burdens the
exercise of religion, the government has the burden of going forward and of
persuasion in proving that the law furthers a compelling governmental interest
and that the law as applied is the least restrictive means of furthering that
compelling [*153] governmental interest. 42 U.S.C. §§ 2000bb-1(a),
2000bb-1(b)(1)-(2), 2000bb-2(3). Though this is a demanding test, see City of Boerne v. Flores, 521 U.S.
507, 534, 138 L. Ed. 2d 624 (1997), it seems particularly appropriate to insist
that a movant meet all elements of the preliminary injunction test because RFRA
goes beyond the protections offered by the First Amendment. See Kikumura v. Hurley, 242 F.3d 950,
955, 962 (10th Cir. 2001) (requiring consideration of all preliminary
injunction elements with RFRA claim). In other words, RFRA is not the First
Amendment and UDV has no valid claim that its First Amendment rights are being
violated given that the CSA is a neutral law of general applicability. See Smith, 494 U.S. at 885; United States v. Meyers, 95 F.3d 1475,
1481 (10th Cir. 1996). Given evenly balanced evidence concerning the health
risks of DMT usage and its potential diversion, UDV cannot satisfy its burden
of showing that its injury outweighs any injury to the government and that an
injunction would not be adverse to the public interest.
1. Controlled Substances Act
First and [*154] foremost, as set out above, Congress has
specifically found that the importation and consumption of controlled
substances is adverse to the public interest. 21 U.S.C. §§ 801(2), 801a(1).
Congress has specifically found that the drug at issue here, DMT, has high
potential for abuse and is not safe to consume even under the supervision of
medical personnel. Id. § 812(b)(1),
(c), sched. I(c)(6). n13
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n13 Judge Seymour appears to assert that it is improper to rely on these
congressional findings in light of the passage of RFRA. Opinion of Seymour, J.,
at 27 n.8 ("Judge Murphy relies heavily on Congress' specific findings
that the importation and consumption of controlled substances are adverse to
the public interest . . . while totally ignoring the immediate and strong
reaction Congress had to the Supreme Court's decision in Employment Division v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876
(1990)."). Judge Seymour's assertion is flawed. As the congressional
findings accompanying RFRA make clear, what Congress found offensive about Smith was its abandonment of the
compelling interest test with regard to laws neutral to religion. 42 U.S.C. §
2000bb(a). None of the findings in § 2000bb(a), or any other portion of RFRA,
indicate that the interests protected by the CSA are not compelling. In fact,
there is no mention at all of the CSA in § 2000bb(a). Judge Seymour has simply
failed to explain how the findings set out in § 2000bb(a) minimize the
magnitude of the interests identified by Congress in enacting the CSA. Because
RFRA requires that government conduct which burdens religion be in furtherance
of a compelling governmental interest, id.
§ 2000bb-1(b)(1), and because the congressional findings accompanying the CSA
bear on the question whether the governmental interests at issue in this case
are compelling, the congressional findings accompanying the CSA are highly
relevant.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*155]
Against this backdrop, the district court found that the evidence was in
equipoise as to the risk of diversion of hoasca
to non-religious purposes and the danger of health complications flowing from hoasca consumption by UDV members. As
noted above, both Judge Seymour and Judge McConnell erroneously rely on this
finding to conclude that the United States has not carried its burden of
demonstrating that the restrictions in the CSA against the importation and
consumption of hoasca further the
United States' compelling interests and that, concomitantly, UDV is
substantially likely to prevail on the merits of its RFRA claim. Opinion of
Seymour, J., at 21; Opinion of McConnell, J., at 17-18. The United States,
however, has no such burden at the third and fourth steps of the preliminary
injunction analysis. At these stages, it is UDV that must demonstrate the
requested preliminary injunction is not adverse to the public interest and its
harm outweighs any harm to the government. Furthermore, because the preliminary
injunction UDV is requesting would upset the status quo, it must show that the
exigencies of the case entitle it to this extraordinary interim relief and that
the [*156] balance of harms favors the issuance of an otherwise
disfavored interim remedy. In light of the congressional findings noted above
and the equipoised nature of the parties' evidentiary submissions, UDV has not
met its burden. n14
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n14 Judge Seymour seems to take comfort in the fact that the preliminary
injunction only temporarily precludes the government from enforcing the CSA. See Opinion of Seymour, J., at 24. As
noted above, however, Congress has specifically found that the consumption of
DMT is unsafe even when consumed under medical supervision and that the drug
has a high potential for abuse. See
21 U.S.C. § 812(b)(1). UDV could not muster sufficient evidence to demonstrate
that consumption of DMT is safe or that there is no risk of diversion. Although
it is true that the preliminary injunction could be quickly lifted should the
United States prevail on the merits, such a course would not remediate any harm
that might occur to the members of UDV or the general citizenry from diverted hoasca while the preliminary injunction
was in effect. Judge Seymour's approach thus seems to wholly discount those
risks that inhere in the preliminary injunction.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*157]
The United States suffers irreparable injury when it is enjoined from enforcing
its criminal laws. See New Motor Vehicle
Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 54 L. Ed. 2d 439
(Rehnquist, Circuit Justice 1977). This injury to the United States, which when
coupled with UDV's failure of proof on the questions of diversion and danger to
UDV members prevents UDV from meeting its burden under the third and fourth
preliminary injunction factors, is exacerbated by the burdensome and constant
official supervision and oversight of UDV's handling and use of hoasca affirmatively required by the
injunction in this case. The district court's preliminary injunction is eleven
pages long and contains thirty-six paragraphs; it modifies or enjoins
enforcement of a staggering number of regulations implementing the CSA, with
the result that the United States must actually set about to aid UDV in the
importation of an unlimited supply of hoasca.
n15 UDV has not carried its burden of demonstrating that its injury, although
admittedly irreparable, sufficiently outweighs the harm to the government so as
to warrant interim relief that alters the status quo pending [*158]
a determination of the merits. n16
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n15 See, e.g., Preliminary Injunction
para. 13 (giving UDV right to refuse to allow inspections of any items, pending
a determination by the district court, if UDV concludes such an inspection would
violate its right to freedom of association); id. para. 15 (directing United States and UDV to "arrive at a
mutually acceptable means of disposal of any hoasca that must be disposed
of"); id. para. 24 (setting out
time frames within which United States must conduct inspections); id. para. 25 (requiring United States to
expedite UDV applications to import and distribute hoasca); id. para. 29
(seriously limiting circumstances under which United States can revoke UDV's
registration to import and distribute hoasca);
id. para. 35 (requiring United States
to designate person or small group of persons to act as liaison with UDV).
n16 In concluding that the injunction in this case is prohibitory rather than
mandatory, Judge Seymour makes much of the fact that many of the provisions in
the preliminary injunction were added at the government's insistence. Opinion
of Seymour, J., at 16-17. This, however, over-simplifies the procedural history
and thereby belies the actual process by which the burdensome provisions found
their way into the district court's preliminary injunction. After concluding
that UDV was entitled to an injunction on its RFRA claim, the district court
directed the parties to submit proposed forms of a preliminary injunction. When
the parties were unable to agree as to the form of the preliminary injunction,
UDV submitted a memorandum on the question. In that memorandum, UDV proposed a
limited regulatory scheme different and independent from the regulations set
out in the Code of Federal Regulations governing Schedule I substances. In
response, the United States asserted that UDV remained bound by applicable
regulations relating to the lawful importation and distribution of Schedule I
substances because UDV had never lodged a
proper legal challenge to those regulations. The government thus asserted
that although UDV had challenged restrictions on its use of hoasca, it had not
challenged generally applicable regulations regarding the lawful importation, distribution, and possession
of Schedule I substances. Accordingly, the form of the preliminary injunction
submitted by the government required UDV to comply with all applicable statutes
and regulations to which UDV had failed
to lodge a legal challenge. Notably, no provision in the government's
proposed preliminary injunction required the government to engage in a
cooperative enterprise with UDV by setting strict time limits within which the
government was obliged to act, required the government to negotiate with UDV
over disposal of hoasca, or required the
government to designate a liaison to deal directly with UDV. Accordingly, it is
simply wrong to assert that it was the government who requested the provisions
in the preliminary injunction that it now challenges as burdensome.
Furthermore, it is wrong to assert that the preliminary injunction entered by
the district court is wholly prohibitory. The provisions identified above are
clearly mandatory in that they require the government to take action outside of
the normally applicable regulatory framework for the lawful importation,
distribution, and possession of a substance containing DMT. As a consequence,
the preliminary injunction constructs a customized regulatory scheme for UDV
that differs from the regulatory scheme otherwise applicable to the lawful
importation, distribution, and possession of Schedule I substances.
Accordingly, Judge Seymour is wrong in discounting the magnitude of the harm to
the government from the district court's eleven-page, thirty-six-paragraph
preliminary injunction. Although the preliminary injunction at issue here is
subject to a heightened standard because it alters the status quo, thus
obviating the need to definitively determine whether the injunction as a whole
is mandatory or prohibitory, Judge Seymour certainly errs in discounting the
burdens imposed on the government as a result of the district court's
preliminary injunction.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*159]
Unfortunately, Judge Seymour's separate opinion could be read as shifting the
burden to the government to prove that its harm flowing from an injunction
prohibiting enforcement of the CSA outweighs the harm to UDV and that the
preliminary injunction is not adverse to the public interest. Opinion of
Seymour, J., at 24 ("As the UDV established to the district court's
satisfaction, neither of the potential harms asserted by the government are
more likely than not to occur. Thus, the balance is between actual irreparable
harm to plaintiff and potential harm to the government which does not even rise
to the level of a preponderance of the evidence."). The problem with such
an approach is that even when a requested preliminary injunction does not alter
the status quo, the movant has the burden of demonstrating, clearly and unequivocally,
that it is entitled to interim relief that is always extraordinary. Dominion Video Satellite, Inc. v. Echostar
Satellite Corp., 356 F.3d 1256, 1260-61 (10th Cir. 2004). Because this
particular preliminary injunction does alter the status quo, UDV must make an
even more rigorous showing, as set out above, of its entitlement to interim
relief. [*160] See supra
at 9-10. With this in mind, it must be noted that it is UDV that failed to show
by a preponderance of the evidence there was no risk of diversion and no risk
to the health of UDV members. The government has no such burden of proof at the
third and fourth stages of the preliminary injunction analysis. To conclude
that UDV satisfied its burden defies the record and the district court's
findings that the evidence is in equipoise.
Judge Seymour's discussion of the balancing of the harms flowing from enjoining
enforcement of the CSA is similarly unconvincing. UDV would certainly suffer an
irreparable harm, assuming of course that it is likely to succeed on the merits
of its RFRA claim. On the other hand, the magnitude of the risk of harm to the
government is unquestionably substantial. Although the harm identified by the
government is a risk of diversion and a risk of adverse health consequences to members
of UDV or to a member of the public who obtains diverted hoasca, if the risk comes to fruition the consequences could be
deadly. As explained above, UDV failed to demonstrate that there is no risk of
diversion or of adverse health consequences to UDV members. As
the [*161] district court's findings demonstrate, it is just as
likely as not that hoasca will be
diverted and that members of UDV and the public will suffer adverse health
consequences. Cf. 21 U.S.C. §
812(b)(1), (c), sched. I(c)(6) (finding that DMT is unsafe to consume even
under medical supervision). Both Judge Seymour and Judge McConnell seriously
undervalue the magnitude of the risks identified by the government in
concluding that UDV's actual harm outweighs the risks of harm identified by the
government.
At its base, the concurring opinion of Judge McConnell would convert RFRA into
a 900-pound preliminary injunction gorilla. According to Judge McConnell, the
third and fourth preliminary injunction factors have no real play when RFRA is
involved. Opinion of McConnell, J., at 36-37 ("When the government fails
to demonstrate its compelling interest in burdening a constitutional right,
courts routinely find that, in the absence of a compelling justification for
interference, the balance of harms and public interest also favor protecting
the moving party's burdened rights."). Thus, according to Judge McConnell,
once a party demonstrates a substantial likelihood [*162] of success
on the merits in a RFRA case, the inquiry is complete. Id. Other than simply noting that Congress passed RFRA only to
restore the compelling interest test from Sherbert
v. Verner, 374 U.S. 398, 10 L. Ed. 2d 965 (1963), Judge McConnell offers no
real support for his implicit proposition that RFRA renders irrelevant each of
the remaining preliminary injunction factors. n17 Judge McConnell thus rewrites
RFRA so that it would now legislatively overrule decades of preliminary
injunction jurisprudence, something RFRA does not do expressly.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n17 Judge McConnell does cite to a number of cases involving the deprivation of
a constitutional right. Opinion of McConnell, J., at 37-38. As noted above,
both Judges McConnell and Seymour seem to forget that the right at issue in
this case is based on a congressional enactment, not the Constitution.
Furthermore, as noted at length above, RFRA must be read in light of its
historical context. RFRA merely restored the law to its pre-Smith state, a state of law under which
courts routinely rejected religious exemptions from generally applicable drug
laws.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*163]
Equally unconvincing is Judge McConnell's assertion that equitable
considerations that might not carry the day for the government at the
likelihood- of-success-on-the-merits stage are rendered irrelevant by RFRA at
the balancing- of-harms and public-interest stages. Opinion of McConnell, J.,
at 36 ("The dissent attempts to make an end run around RFRA's
reinstatement of strict scrutiny by repackaging all of the arguments that would
be relevant to the merits (where the presumption of invalidity would clearly
apply) as arguments about the equities (where it is disregarded)."). The
preliminary injunction is, after all, an equitable remedy. Even where a movant
demonstrates that it is substantially likely to prevail on the merits, a
showing that UDV has failed to make, there may very well be equitable
considerations counseling against the granting of extraordinary relief prior to
a final determination on the merits. This is just such a case. Without regard
to whether UDV is substantially likely to prevail on the merits, the evidence
adduced before the district court raises such serious questions about the adverse
health effects of hoasca, both as to
UDV members and the public at large, [*164] and about the
consequences of forced non-compliance with the Convention that interim
equitable relief is not appropriate in this case.
Nor does the Supreme Court's recent decision in Ashcroft v. ACLU, 159 L. Ed. 2d 690, 124 S. Ct. 2783 (2004),
support Judge McConnell's assertion that equitable considerations are
irrelevant under RFRA, once a movant has demonstrated a substantial likelihood
of success on the merits. See Opinion
of McConnell, J., at 38-40. Judge McConnell cites the following passage from Ashcroft in support of his proposition:
As mentioned above, there is a serious gap in the evidence as to the
effectiveness of filtering software. . . . For us to assume, without proof,
that filters are less effective than COPA would usurp the District Court's
factfinding role. By allowing the preliminary injunction to stand and remanding
for trial, we require the Government to shoulder its full constitutional burden
of proof respecting the less restrictive alternative argument, rather than
excuse it from doing so.
Opinion of McConnell, J., at 39-40 (quoting Ashcroft,
124 S. Ct. at 2794). Contrary to Judge McConnell's assertion,
this [*165] passage simply does not relate in any fashion to the
equitable process of balancing the competing harms or examining how a requested
injunction would affect the public interest that occurs at the third and fourth
stages of the preliminary injunction inquiry. Instead, it relates only to the
question whether the movants in that case were likely to prevail on the merits.
See Ashcroft, 124 S. Ct. at 2791-92
("As the Government bears the burden of proof on the ultimate question of
COPA's constitutionality, respondents must be deemed likely to prevail unless
the Government has shown that respondents' proposed less restrictive
alternatives are less effective than COPA.").
To the extent that there is any meaningful discussion in Ashcroft of the particular issue before this court, n18 Ashcroft supports the approach set out
in this opinion. In concluding that the preliminary injunction should stand
under the particular circumstances of that case, the Ashcroft Court noted as follows:
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n18 That is, whether equitable considerations might occasionally preclude the
grant of a preliminary injunction even though a movant has demonstrated a
likelihood of success on the merits.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
- [*166]
The potential harms from reversing the injunction outweigh those of leaving it
in place by mistake. Where a prosecution is a likely possibility, yet only an
affirmative defense is available, speakers may self-censor rather than risk the
perils of trial. There is a potential for extraordinary harm and a serious
chill upon protected speech. The harm done from letting the injunction stand
pending a trial on the merits, in contrast, will not be extensive. No
prosecutions have yet been undertaken under the law, so none will be disrupted
if the injunction stands. Further, if the injunction is upheld, the Government
in the interim can enforce obscenity laws already on the books.
Ashcroft, 124 S. Ct. at 2794
(citation omitted). This passage indicates that "practical"
considerations, including considerations that might not carry the day at the
likelihood-of-success-on-the-merits stage, are nevertheless relevant when a
court is undertaking a weighing of the equities. Id. In this case, those practical considerations most assuredly
counsel against granting interim relief to UDV. The record clearly indicates,
and the district court found, that it is just as likely [*167] as
not that UDV members will suffer adverse health consequences as a result of the
consumption of hoasca and that hoasca will be diverted to the general
public. Furthermore, with the preliminary injunction in place, the government
is left with no alternative avenues to further the important public safety
policies underlying the CSA. This is in stark contrast to the situation in Ashcroft, wherein the government could
"in the interim [continue to] enforce obscenity laws already on the
books." Id. For those reasons
set out above, this is clearly one of those cases where equitable considerations
weigh heavily against the entry of a preliminary injunction, even assuming UDV
has demonstrated a substantial likelihood of prevailing on the merits.
2. United Nations Convention on
Psychotropic Substances
As noted above, a preliminary injunction requiring the United States to violate
the Convention could seriously impede the government's ability to gain the
cooperation of other nations in controlling the international flow of illegal
drugs. 21 U.S.C. § 801a(1) ("Abuse of psychotropic substances has become a
phenomenon common to many countries . . [*168] . and is not
confined to national borders. It is, therefore, essential that the United
States cooperate with other nations in establishing effective controls over
international traffic in such substances."). Furthermore, the only
evidence in the record on this question, the Dalton declaration, indicates the
need to avoid a violation that would undermine the United States' role in
curtailing illicit drug trafficking.
Without regard to whether the declaration and congressional findings are
sufficient to carry the government's burden of demonstrating that absolute
compliance with the Convention is the least restrictive means of advancing the
government's compelling interest, the declaration, taken together with the
congressional findings, certainly bears on the question of harm to the United
States and the adversity of the preliminary injunction to the public interest.
These matters were not even addressed by the district court. In light of the
declaration, the congressional findings, and the extant status quo, UDV has
simply not carried its burden of demonstrating that its interest in the use of
sacramental hoasca pending the
resolution of the merits of its complaint outweighs the [*169] harm
resulting to the United States from a court order mandating that it violate the
Convention. Nor has UDV shown that such an injunction is not adverse to the
public interest.
III.
The court correctly reaffirms the central holding in SCFC ILC that when a movant is seeking one of the three
historically disfavored types of preliminary injunctions, the movant must
satisfy a higher burden. I, therefore, join parts I, II, and III.A of the per curiam opinion.
For those reasons set out above, UDV has failed to make the strong showing
necessary to demonstrate its entitlement to a judicially ordered alteration of
the status quo pending the resolution of the merits of this case. First, UDV
has not demonstrated a substantial likelihood of success on the merits. The
government's assertion that the ban on the consumption of DMT/hoasca is necessary to protect the
health of UDV members and to prevent diversion of a Schedule I psychotropic
drug to the general population is fully supported by the congressional findings
set out in the CSA. 21 U.S.C. §§ 801(2), 801a(1), 812(b)(1), 812(c), sched.
I(c)(6). These same congressional findings also demonstrate
the [*170] need for uniformity in administration of the drug laws. See Smith, 494 U.S. at 905-06 (O'Connor,
J., concurring); Israel, 317 F.3d at
771. At the same time, it is clear that Congress enacted RFRA to restore the
pre-Smith compelling interest test.
42 U.S.C. § 2000bb(a). Prior to Smith,
courts routinely rejected religious exemptions from laws regulating controlled
substances. See supra at 19-20
(setting out pre- and post-RFRA cases rejecting religious exemptions from
neutrally applicable drug laws). There is simply nothing in the legislative
history of RFRA to indicate that it was intended to mandate a drug-by-drug,
religion-by-religion judicial reexamination of the nation's drug laws. UDV has
failed to demonstrate that it is substantially likely to prevail on its claim
that RFRA exempts it from the prohibition against the consumption of DMT set
out in the CSA. UDV has likewise failed to demonstrate that it is substantially
likely to prevail on its RFRA claim, when measured against the government's
interest in complying with the Convention. Congress specifically found that
international cooperation is necessary to [*171] stem the international
flow of psychotropic drugs. 21 U.S.C. § 801a(1). The Dalton declaration
demonstrates that an injunction forcing the United States into non-compliance
with the Convention could undermine the United States' efforts to obtain
international cooperation to control the cross- border traffic in illegal
drugs. Because UDV has failed to demonstrate a substantial likelihood of
success on the merits, it is not entitled to a preliminary injunction.
Even setting aside the question of whether UDV is substantially likely to
prevail on the merits, UDV has independently failed to carry its heavy burden
of establishing that the balance of harms and the public interest favors the
issuance of a preliminary injunction. Setting aside the Convention for the
moment and considering these factors only in relation to the CSA, UDV failed to
establish entitlement to extraordinary interim relief altering the status quo.
The district court found, as part of its analysis of likelihood of success on
the merits, that the evidence regarding risk of diversion and harm to members
of UDV was virtually balanced and in equipoise. In other words, the district
court found that [*172] it is just as likely as not that hoasca will be diverted to the general
public and that members of UDV will suffer harm from the consumption of hoasca. These findings make it clear
that UDV failed to muster sufficient evidence to demonstrate that the balance
of harms weighs clearly and unequivocally in its favor and that the public
interest clearly and unequivocally favors the entry of a preliminary
injunction. The harm to the government and public interest is not, however,
singularly related to the CSA. Harm to the government and the public interest
resulting from the court- ordered violation of the Convention remain
unaddressed by UDV or the district court. Furthermore, both Judge Seymour's and
Judge McConnell's attempts to minimize the significant harm flowing to the
government as a result of its forced non-compliance with the Convention are
flawed. With the evidence of the balance of harms and public interest in such a
state, UDV has utterly failed to meet its burden under the third and fourth
preliminary injunction factors.
I would reverse the district court's entry of a preliminary injunction. Because
a majority of the court concludes otherwise, I respectfully
dissent [*173] from parts III.B and IV of the per curiam opinion.
PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
ON REHEARING EN BANC
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Gregory G. Katsas, Deputy Assistant Attorney General (David C. Iglesias, Attorney General, Peter D. Keisler, Assistant Attorney General, Michael Jay Singer, Attorney, Department of Justice and Matthew M. Collette, Attorney, Department of Justice with him of the briefs), of the Department of Justice, Washington, D.C., for Defendants-Appellants.
John W. Boyd (Nancy Hollander with him on the brief), of Freedom, Boyd, Daniels, Hollander, Goldberg & Cline, P.A., Albuquerque, New Mexico for Plaintiffs-Appellees.
Gregory S. Baylor, Nathan A. Adams, Kimberlee W. Colby, of Center for Law and Religious Freedom, Christian Legal Society, Annandale, Virginia, filed an amicus curiae brief on behalf of Plaintiffs-Appellees.
Before TACHA, Chief Judge, SEYMOUR, PORFILIO, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ, OíBRIEN, McCONNELL, and TYMKOVICH, Circuit Judges.
PER CURIAM.
I.
This matter is before the en banc court to review issues emanating from the panel opinion in O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003). The panel affirmed a preliminary injunction, granted under the Religious Freedom Restoration Act ("RFRA"), which enjoined the United States from relying on the Controlled Substances Act ("CSA") and the United Nations Convention on Psychotropic Substances ("Convention") to prohibit the sacramental use of hoasca by Uniao do Vegetal and its members (collectively "UDV"). This court granted rehearing to review the different standards by which we evaluate the grant of preliminary injunctions, and to decide how those standards should be applied in this case.
II.
The underlying facts relating to the parties and the issues are fully described in the panel opinion and are therefore unnecessary to reiterate here. UDV invoked RFRA, 43 U.S.C. § 2000bb-1, to obtain declaratory and injunctive relief which would prevent the government from prohibiting UDV's importation, possession, and use of hoasca for religious purposes and from attempting to seize the substance or prosecute individual UDV members.(1) After an evidentiary hearing, the district court granted UDV's motion for a preliminary injunction pending a decision on the merits. The government appealed that decision, the panel affirmed, and we granted the en banc petition.(2)
III.
The en banc court is divided over the outcome of this case. Nevertheless, a majority of the court has voted to maintain a heightened standard for granting any of the three historically disfavored preliminary injunctions. A different majority has voted to affirm the district court's entry of a preliminary injunction in this case.
A. Standards for Granting Disfavored Preliminary Injunctions
In SCFC ILC, Inc. v. Visa USA, Inc., this court identified the following three types of specifically disfavored preliminary injunctions and concluded that a movant must "satisfy an even heavier burden of showing that the four [preliminary injunction] factors . . . weigh heavily and compellingly in movant's favor before such an injunction may be issued": (1) preliminary injunctions that alter the status quo; (2) mandatory preliminary injunctions; and (3) preliminary injunctions that afford the movant all the relief that it could recover at the conclusion of a full trial on the merits. 936 F.2d 1096, 1098-99 (10th Cir. 1991). With one important alteration, a majority of the en banc court has voted to affirm the core holding of SCFC ILC. Part I of the Opinion of Murphy, J., joined by Ebel, Kelly, Hartz, O'Brien, McConnell, and Tymkovich, JJ.; Part I of the Opinion of McConnell, J, joined by Hartz, O'Brien, and Tymkovich, JJ. Thus, if a movant seeks a preliminary injunction that falls into one of the three categories identified in SCFC ILC, the movant must satisfy a heightened burden. The en banc court does, however, jettison that part of SCFC ILC which describes the showing the movant must make in such situations as "heavily and compellingly." SCFC ILC, 936 F.2d at 1098. Instead, the en banc court holds that courts in this Circuit must recognize that any preliminary injunction fitting within one of the disfavored categories must be more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is extraordinary even in the normal course. Furthermore, because a historically disfavored preliminary injunction operates outside of the normal parameters for interim relief, movants seeking such an injunction are not entitled to rely on this Circuit's modified-likelihood-of-success-on-the-merits standard. Instead, a party seeking such an injunction must make a strong showing both with regard to the likelihood of success on the merits and with regard to the balance of harms, and may not rely on our modified likelihood-of-success-on-the-merits standard.
B. Grant of Preliminary Injunction in this Case
Although the reasons vary, a majority of the en banc court is of the view that the district court's entry of a preliminary injunction in this case should be affirmed. Part II of Opinion of Seymour, J., joined by Tacha, C.J., and Porfilio, Henry, Briscoe, Lucero, McConnell, and Tymkovich, JJ.; Part II of the Opinion of McConnell, J., joined by Tymkovich, J.
VI.
The decision of the United States District Court for the District of New Mexico to grant UDV's request for a preliminary injunction is hereby AFFIRMED. The temporary stay of the district court's preliminary injunction issued by this court pending resolution of this appeal is vacated.
No.
02-2323, O Centro Espirita Beneficiente
Uniao do Vegetal v. Ashcroft
MURPHY, Circuit Judge, joined in full by EBEL, KELLY, and O'BRIEN, Circuit Judges, and as to Part I by HARTZ, McCONNELL, and TYMKOVICH, Circuit Judges, concurring in part and dissenting in part.
I agree with the per curiam opinion that a movant for a preliminary injunction must make a heightened showing when the requested injunction will alter the status quo. As set out more fully below, such an approach is completely consistent with the historic purpose of the preliminary injunction. Accordingly, I join parts I, II, and III.A of the per curiam opinion. I must respectfully dissent, however, from the conclusion that O Centro Espirita Beneficiente Uniao do Vegetal ("UDV") has sufficiently shown its entitlement to a preliminary injunction prohibiting the United States from enforcing the Controlled Substances Act ("CSA"), 21 U.S.C. § 801 et seq. As a direct result of the preliminary injunction embraced by the majority, the United States is placed in violation of the United Nations Convention on Psychotropic Substances, Feb. 21, 1971, 32 U.S.T. 543 (hereinafter the "Convention"). I thus dissent from parts III.B and IV of the per curiam opinion.
I.
1. A Heightened Showing is Appropriate When
the Requested Preliminary Injunction Would Alter the Status Quo
The Supreme Court has observed "that a preliminary injunction is an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (quotation omitted); accord SCFC ILC, Inc. v. VISA USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991) ("As a preliminary injunction is an extraordinary remedy, the right to relief must be clear and unequivocal." (citation omitted)); United States ex rel. Citizen Band Potawatomi Indian Tribe of Okla. v. Enter. Mgmt. Consultants, Inc., 883 F.2d 886, 888-89 (10th Cir. 1989) ("Because it constitutes drastic relief to be provided with caution, a preliminary injunction should be granted only in cases where the necessity for it is clearly established."). The Supreme Court has further indicated that the "limited purpose" of a preliminary injunction "is merely to preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). Accordingly, courts should be hesitant to grant the extraordinary interim relief of a preliminary injunction in any particular case, but especially so when such an injunction would alter the status quo prior to a trial on the merits.
This court's precedents are in harmony with the sentiments expressed by the Supreme Court in Mazurek and Camenisch. In particular, this court has identified the following three types of disfavored preliminary injunction and concluded that a movant must make a heightened showing to demonstrate entitlement to preliminary relief: "(1) a preliminary injunction that disturbs the status quo; (2) a preliminary injunction that is mandatory as opposed to prohibitory; and (3) a preliminary injunction that affords the movant substantially all the relief he may recover at the conclusion of a full trial on the merits." SCFC ILC, 936 F.2d at 1098-99. Because each of these types of preliminary injunction is at least partially at odds with the historic purpose of the preliminary injunction--the preservation of the status quo pending a trial on the merits--this court has held that to obtain such an injunction the movant must demonstrate that "on balance, the four [preliminary injunction] factors weigh heavily and compellingly in his favor." Id. at 1099.
The en banc court specifically reaffirms the central holding in SCFC ILC that a movant seeking a preliminary injunction which upsets the status quo must satisfy a heightened burden. In advocating the abandonment of this requirement, Judge Seymour suggests that requiring a heightened showing when a requested preliminary injunction would alter the status quo is inconsistent with the need to prevent irreparable harm and is inconsistent with the approaches taken by other circuits. Opinion of Seymour, J., at 4-6. Neither assertion offers a convincing reason for abandoning the well-reasoned approach set out in SCFC ILC.
It is simply wrong to assert that the application of heightened scrutiny to preliminary injunctions which alter the status quo is inconsistent with the purpose of preliminary injunctions. The underlying purpose of the preliminary injunction is to "preserve the relative positions of the parties until a trial on the merits can be held." Camenisch, 451 U.S. at 395; see also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2947, at 123 (2d ed. 1995) [hereinafter "Wright & Miller"] (noting that the purpose of the preliminary injunction is to assure that the non-movant does not take unilateral action which would prevent the court from providing effective relief to the movant should the movant prevail on the merits). Although the prevention of harm to the movant is certainly a purpose of the preliminary injunction, it is not the paramount purpose. See Wright & Miller § 2947, at 123 (noting that although the prevention of harm to the movant is an important factor to be considered in deciding whether to grant a preliminary injunction, the primary purpose for such an order is "the need to prevent the judicial process from being rendered futile by defendant's action or refusal to act"). Because a preliminary injunction which alters the status quo is generally contrary to this traditional purpose, such an injunction deserves some form of heightened scrutiny. See id. § 2948, at 133-35 & n.11 (collecting cases for proposition that "the purpose of the preliminary injunction is the preservation of the status quo and that an injunction may not issue if it would disturb the status quo"). Such an approach is supported by strong policy rationales.
Any injury resulting from a preliminary injunction that merely preserves the status quo is not a judicially inflicted injury. Instead, such injury occurs at the hands of a party or other extrajudicial influence. By contrast, an injury resulting from a preliminary injunction that disturbs the status quo by changing the relationship of the parties is a judicially inflicted injury. It is injury that would not have occurred but for the court's intervention and one inflicted before a resolution of the merits. Because the issuing court bears extra responsibility should such injury occur, it should correspondingly be particularly hesitant to grant an injunction altering the status quo unless the movant makes an appropriate showing that the exigencies of the case require extraordinary interim relief. It may be small consolation should the issuing court ultimately resolve the merits in favor of the non-moving party; at that point the non-moving party has often incurred significant costs as a result of abiding by the improvident preliminary injunction.(1) A plaintiff who was willing to live with the status quo before filing its complaint should meet a higher standard in order to have the court intervene with an injunction that alters the status quo. Judge Seymour's approach, which seeks to elevate the importance of irreparable harm at the expense of the status quo, is inconsistent with the historic underpinnings of the preliminary injunction.
Nor is the failure of other courts to adequately distinguish between mandatory injunctions and injunctions that alter the status quo a sufficient reason to abandon SCFC ILC. See Opinion of Seymour, J., at 4 & n.1. In asserting that preliminary injunctions which alter the status quo should not be an independent disfavored category, Judge Seymour relies heavily on the fact that in cataloging the types of disfavored injunctions, no other court has chosen to specifically distinguish between preliminary injunctions which alter the status quo and preliminary injunctions which are mandatory. Id. None of the cases cited by Judge Seymour, however, contain any discussion of this question. Instead, those cases simply note, almost reflexively, that any preliminary injunction which alters the status quo is a mandatory injunction and, thus, subject to heightened scrutiny. Id. (collecting cases). The reflexive equation of preliminary injunctions which alter the status quo with mandatory injunctions by the courts cited by Judge Seymour is simply not a compelling justification to abandon the reasoned approach from SCFC ILC.
In any event, it is certainly true that courts have historically applied a more stringent standard to mandatory preliminary injunctions for the very reason that those injunctions generally do alter the status quo. See, e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d 517, 526 (4th Cir. 2003); Tom Doherty Assocs. v. Saban Entm't, Inc., 60 F.3d 27, 34 (2d Cir. 1995); Anderson v. United States, 612 F.2d 1112, 1114 (9th Cir. 1979). In fact, most courts decide whether a given preliminary injunction is "mandatory" or "prohibitory" by determining whether or not it alters the status quo. See, e.g., Tom Doherty Assocs., 60 F.3d at 34; Acierno v. New Castle County, 40 F.3d 645, 647 (3d Cir. 1994); Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir. 1994); Martinez v. Mathews, 544 F.2d 1233, 1242-43 (5th Cir. 1976). For these courts, then, the question whether an injunction is mandatory or prohibitory is merely a proxy for the more significant question whether an injunction alters the status quo. Thus, to the extent these two categories do overlap, it is indeed strange to keep the proxy while jettisoning the underlying consideration giving rise to that proxy. See Opinion of Seymour, J., at 4, 9-10 (advocating the abandonment of heightened scrutiny for injunctions which alter the status quo, while maintaining heightened scrutiny for mandatory injunctions).
There is good reason, however, to distinguish between mandatory injunctions and injunctions which alter the status quo and to treat both types as disfavored. As set out above, "[a] preliminary injunction that alters the status quo goes beyond the traditional purpose for preliminary injunctions, which is only to preserve the status quo until a trial on the merits may be had." SCFC ILC, 936 F.2d at 1099. Although mandatory injunctions also generally alter the status quo, that is not always the case. It is not at all difficult to envision situations where a mandatory injunction would preserve the status quo and a prohibitory injunction would alter the status quo. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 746 F.2d 816, 830 n.21 (D.C. Cir. 1984) (noting that whether a mandatory or prohibitory injunction will maintain or alter the status quo depends on whether the status quo is a "condition of action" or a "condition of rest"). Without regard to whether a mandatory preliminary injunction alters the status quo, however, it is still appropriate to disfavor such injunctions "because they affirmatively require the nonmovant to act in a particular way, and as a result they place the issuing court in a position where it may have to provide ongoing supervision to assure the nonmovant is abiding by the injunction." SCFC ILC, 936 F.2d at 1099. Thus, it is simply incorrect to assert that there is perfect overlap between these two categories and that the concept of status quo should be folded into the question whether an injunction is mandatory or prohibitory. The fact that other courts have failed to recognize these subtle distinctions is simply no reason to abandon the three artfully drawn categories set out in SCFC ILC.
For these reasons, the court is correct in reaffirming the central holding in SCFC ILC that a movant seeking a preliminary injunction which upsets the status quo must satisfy a heightened burden. Nevertheless, the decision to jettison SCFC ILC's "heavily and compellingly" language as the articulated standard for granting any of the three types of disfavored preliminary injunctions is appropriate. It is enough to note that courts in this Circuit should recognize that each of the three types of injunction identified above is disfavored and that a request for such an injunction should be even more closely scrutinized to assure that the exigencies of the case support the granting of a remedy that is certainly extraordinary. See Enter. Mgmt. Consultants, 883 F.2d at 888 (holding that even a traditional injunction, i.e., an injunction which preserves the status quo, is an "extraordinary" and "drastic" remedy). Furthermore, because a preliminary injunction that alters the status quo operates outside the historic parameters for such interim relief, movants should not be able to rely on this Circuit's modified-likelihood-of-success-on-the-merits standard. Instead, in addition to making a strong showing that the balance of the harms tips in its favor and that the preliminary injunction is not adverse to the public interest, a movant seeking a preliminary injunction that alters the status quo should always have to demonstrate a substantial likelihood of success on the merits.(2)
B. The Status Quo in This Case is the Enforcement of the CSA and Compliance with the Convention
The status quo in fact in this case is the enforcement of the CSA and compliance with the Convention. The record is clear that both UDV itself and the United States recognized that the importation and consumption of hoasca violated the CSA. UDV made a concerted effort to keep secret its importation and use of hoasca. On the relevant import forms, UDV officials in the United States generally referred to hoasca as an "herbal tea"; they never called it hoasca or ayahuasca or disclosed that it contained DMT. UDV president Jeffrey Bronfman informed customs brokers that the substance being imported was an "herbal extract" to be used by UDV members as a "health supplement." Furthermore, in an e-mail drafted by Bronfman, he emphasized the need for confidentiality regarding UDV's "sessions" involving hoasca: "Some people do not yet realize what confidentiality is and how careful we need to be. People should not be talking publicly anywhere about our sessions, where we have them and who attends them." When UDV attempted to grow psychotria viridis and banisteriopsis caapi(3) in the United States, it imported the seeds and plants "clandestinely," in the words used by UDV, and required its members to sign confidentiality agreements to keep their attempts secret. All of these actions by UDV demonstrate a recognition that its importation and consumption of hoasca violated the CSA. Likewise, when the United States realized that UDV was importing a preparation which contained DMT, it seized that shipment and additional quantities of the preparation found in a search of Bronfman's residence. Accordingly, although UDV eventually sought a preliminary injunction after the seizure of the hoasca, at all times leading up to that event the record reveals that the status quo was the enforcement of the CSA. Where one party, here UDV, intentionally precludes a contest by concealing material information, the status quo must be determined as of the time all parties knew or should have known all material information.
Although recognizing that UDV "acted in a somewhat clandestine manner in the course of importing the hoasca and using it in its religious ceremonies," Judge Seymour nevertheless asserts that UDV's importation and use of hoasca is still the status quo because UDV's actions were "premised on its firmly held belief that such religious activity was in fact protected from government interference by its right to the free exercise of its religion." Opinion of Seymour, J., at 19 n.3. It is odd, indeed, to assume that UDV thought its actions were entirely lawful and protected by the Religious Freedom Restoration Act ("RFRA") or the First Amendment, in light of the fact that all of its actions were taken in secret. In any event, UDV's reason for doing what it was doing is irrelevant. It simply cannot be the case that a party can establish the status quo in a given case through secretive or clandestine activity. There is enough natural incentive to manipulation in events preceding litigation, and in litigation itself, without providing judicial endorsement of surreptitious conduct by wrapping it in a cloak of "status quo." The "last peaceable uncontested status existing between the parties before the dispute developed," 11A Wright & Miller § 2948, at 136, is most surely the open and notorious actions of the parties before the dispute. Here, it is uncontested that the open and notorious actions of UDV were a facade of compliance with the CSA. Thus, the status quo in this case is the government's enforcement of the CSA.
What is most strange about the approach advocated by Judge Seymour is its apparent reliance on the legal rights of the parties in arriving at the status quo in this case. Although disclaiming such an approach, Opinion of Seymour, J., at 18, Judge Seymour specifically references the parties' legal rights in determining the status quo in this case. Id. ("[W]e are faced with a conflict between two federal statutes, RFRA and the CSA, plus an international treaty, which collectively generate important competing status quos."). If the status quo is both parties exercising their legal rights, but the mutual and contemporaneous exercise of those rights is factually impossible, then the status quo must instead be the exercise of legal rights by only one party. Judge Seymour has not cited a single case to support the assertion that status quo is determined by reference to a party's legal rights. Furthermore, such an approach is clearly inconsistent with this Circuit's historic understanding of what constitutes the status quo. SCFC ILC, 936 F.2d at 1100 ("The status quo is not defined by the [parties'] existing legal rights; it is defined by the reality of the existing status and relationships between the parties, regardless of whether the existing status and relationships may ultimately be found to be in accord or not in accord with the parties' legal rights."). Finally, such an approach is completely unhinged from the reality of the parties' extant relationship and from the historic purposes of the preliminary injunction. For instance, under Judge Seymour's view of what constitutes the status quo, it would not be determinative had the government at first knowingly acquiesced in UDV's consumption of hoasca, believing that such consumption was protected by RFRA, before eventually changing tack and deciding to enforce the CSA. Instead, under Judge Seymour's approach, a relevant consideration for status quo purposes is whether the government was at all times legally entitled to enforce the CSA.(4) This is clearly a question of whether UDV is likely to prevail on the merits. Thus, if a party is likely to prevail on the merits, Judge Seymour would label that merits analysis the status quo and then use it a second time to reduce the movant's burden on the final three preliminary injunction factors. Such an approach lacks logical moorings.
C. Conclusion
In sum, a heightened standard is consistent with the historical underpinnings of the preliminary injunction and is supported by persuasive policy rationales. Furthermore, this court's delineation in SCFC ILC of three types of disfavored preliminary injunction is well-reasoned and consistent with the historic purpose of the preliminary injunction; SCFC ILC should not be completely abandoned simply because other courts have chosen a different course. The status quo in this case is the government's enforcement of the CSA and compliance with the Convention. Accordingly, when analyzing whether UDV is entitled to its requested preliminary injunction, this court will recognize that the requested injunction is disfavored and more closely scrutinize the request to assure that the exigencies of the case support the granting of a particularly extraordinary remedy.(5)
II.
Based heavily on the conclusion that UDV has demonstrated a substantial likelihood of success on the merits, a majority of the en banc court resolves that the district court did not err in granting UDV a preliminary injunction. In contrast to the conclusions of the majority, however, UDV has not demonstrated a substantial likelihood of success on the merits. First, RFRA was intended to restore the compelling interest test that existed before Employment Division v. Smith, 494 U.S. 872 (1990). 42 U.S.C. § 2000bb(b)(1). Employing that test, courts routinely rejected religious exemptions from laws regulating controlled substances and have continued to do so with RFRA. Second, one only need look to the congressional findings set out in the CSA to see that the United States carried its burden of demonstrating that the prohibition against importing or consuming hoasca furthers its compelling interests in protecting the health of UDV members and preventing diversion of hoasca to non-religious uses. Finally, compliance with the Convention, which results in international cooperation in curtailing illicit drug trafficking, is certainly a compelling interest. The record further indicates that absent strict compliance with the Convention, the United States' efforts in this regard would be hampered.
Quite aside from the question of whether UDV has demonstrated it is substantially likely to prevail on the merits, UDV has not demonstrated its entitlement to a preliminary injunction. In connection with the risk to the health of UDV members and the risk to the public from diversion of hoasca, the district court found the evidence respectively "in equipoise" and "virtually balanced." The district court did not proceed to even address the harm to the government and the public interest resulting from violations of the Convention necessitated by its injunction. With the evidence in this state, UDV has not carried its burden of demonstrating that the third and fourth preliminary injunction factors--that the threatened injury to it outweighs the injury to the United States under the preliminary injunction and that the injunction is not adverse to the public interest--weigh in its favor thereby justifying even a preliminary injunction that does not alter the status quo. Superimposing the more appropriate heightened scrutiny for a disfavored injunction altering the status quo upon the evidence in this case renders the preliminary injunction even more decidedly erroneous.
A. Substantial Likelihood of Success on the Merits
1. Controlled Substances Act
RFRA was never intended to result in the kind of case-by-case evaluation of the controlled substances laws, and the scheduling decisions made pursuant to those laws, envisioned by the majority. In light of the specific findings set out in the CSA with regard to the drug at issue here, it is particularly improper for the court to assume such a function in this case. This is true even though limited religious use of another drug, peyote, has been allowed pursuant to statute, 42 U.S.C. § 1996a, and before that, pursuant to regulation, 21 C.F.R. § 1307.31. Apart from the fact that courts should not direct the nation's drug policy, courts simply lack the institutional competence to craft a set of religious exemptions to the uniform enforcement of those laws. In contrast to the majority's conclusion, RFRA does not compel such an approach.
To the extent that RFRA requires the government to prove a compelling governmental interest and least restrictive means concerning the ban on DMT, see 42 U.S.C. § 2000bb-1(b), the government need turn only to express congressional findings concerning Schedule I drugs. Congress specifically found that these drugs have a high potential for abuse, have no currently accepted medical use, and are not safe for use under any circumstances. 21 U.S.C. § 801(2) ("The illegal importation, manufacture, distribution, and possession and improper use of controlled substances have a substantial and detrimental effect on the health and general welfare of the American people."); id. § 801a(1) ("The Congress has long recognized the danger involved in the manufacture, distribution, and use of certain psychotropic substances . . . , and has provided strong and effective legislation to control illicit trafficking and to regulate legitimate uses of psychotropic substances in this country."). As to the specific drug at issue here, DMT, Congress has found that it has high potential for abuse and is not safe to consume even under the supervision of medical personnel. Id. § 812(b)(1) (setting out findings required for placement of a drug on Schedule I); id. § 812(c), sched. I(c)(6) (including DMT, dimethyltryptamine, within Schedule I). These congressional findings speak to a need for uniformity in administration given the serious problem of drug abuse in the United States. See Smith, 494 U.S. at 905 (O'Connor, J., concurring); United States v. Israel, 317 F.3d 768, 771 (7th Cir. 2003).
RFRA ought not result in a case-by-case redetermination of whether these findings are correct. Judge McConnell takes the opposite position--that congressional findings and scheduling (indeed Congress scheduled DMT) are not enough--stating "[s]uch generalized statements are of very limited utility in evaluating the specific dangers of this substance under these circumstances, because the dangers associated with a substance may vary considerably from context to context." Opinion of McConnell, J., at 25. Judge McConnell's opinion suffers from two serious defects.
First, the opinion is simply wrong in asserting that the findings in the CSA are too generalized to have any utility in determining whether the use of DMT in a religious setting is dangerous to the health of UDV practitioners. On this point, Congress could not have been more clear. DMT has a high potential for abuse and is not safe to consume under any circumstances, even including under the supervision of medical personnel. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6).
Second, under the approach advocated by Judge McConnell, whether this court is talking about drinking hoasca tea (ingesting DMT), smoking marijuana, or shooting heroin (Judge McConnell's example), the government will be required to investigate religious use and determine whether the health risks or possibility of diversion would outweigh free exercise concerns. Such a reading of RFRA is difficult to reconcile with RFRA's purpose of merely reviving the pre-Smith compelling interest test. 42 U.S.C. § 2000bb(b)(1). Congress viewed that test as applied in prior federal rulings as "a workable test for striking sensible balances between religious liberty and competing prior governmental interests." Id. § 2000bb(a)(5). Employing that test, courts routinely rejected religious exemptions from laws regulating controlled substances. See United States v. Greene, 892 F.2d 453, 456-57 (6th Cir. 1989); Olsen v. DEA, 878 F.2d 1458, 1462-63 (D.C. Cir. 1989); Olsen v. Iowa, 808 F.2d 652, 653 (8th Cir. 1986); United States v. Rush, 738 F.2d 497, 512-13 (1st Cir. 1984); United States v. Middleton, 690 F.2d 820, 824 (11th Cir. 1982). They have continued to do so with RFRA. See Israel, 317 F.3d at 772; United States v. Brown, No. 95-1616, 1995 WL 732803, at *2 (8th Cir. Dec. 12, 1995) (per curiam); United States v. Jefferson, 175 F. Supp. 2d 1123, 1131 (N.D. Ind. 2001). Though these cases involve marijuana, the same result should obtain in this case.(6)
Judge McConnell's view of how RFRA operates seems to overlook events leading up to the passage of RFRA. It is certainly true, as Judge McConnell notes, that RFRA was passed in response to the Supreme Court's decision in Smith and that Smith did happen to involve the sacramental use of peyote. Opinion of McConnell, J., at 21 ("[T]he impetus for enactment of RFRA was the Supreme Court's decision in a case involving the sacramental use of a controlled substance."). Judge McConnell is wrong to imply, however, that Congress intended to alter the ultimate outcome of that case (states may, consistent with the constitution, prohibit all uses, both religious and non-religious, of peyote), as opposed to altering the analytical model set out in that case (no right in the Free Exercise Clause to avoid neutral laws of general application). Opinion of McConnell, J., at 21-23. A review of the findings accompanying RFRA makes clear that Congress was concerned with the latter, not the former.(7) The procedural history preceding the enactment of RFRA does not support Judge McConnell's assertion that this court is free to ignore the congressional findings in the CSA in resolving UDV's RFRA claim.
Equally unconvincing is Judge McConnell's attempt to minimize the government's interest in the uniform enforcement of the CSA. Unlike compulsory education for an additional two years, the interest in enforcement of the nation's drug laws as prescribed by Congress is one of the highest order. Wisconsin v. Yoder, 406 U.S. 205, 215 (1972) ("The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."). It directly affects the health and safety of American citizens. Unlike the protection of bald and golden eagle populations, the regulation of controlled substances can mean the difference between human life and death, and a court should not be second-guessing legislative and administrative determinations concerning drug scheduling based upon the record we have in this case. See United States v. Szycher, 585 F.2d 443, 444-45 (10th Cir. 1978); see also Touby v. United States, 500 U.S. 160, 162-163 (1991) (discussing time-consuming procedural requirements involved in drug scheduling). For these reasons, Judge McConnell's reliance on Yoder and Hardman is simply misplaced. Opinion of McConnell, J., at 23-24, 44-45.
Judge McConnell is likewise wrong to assert that the Attorney General has the raw power to grant religious exemptions from the Controlled Substances Act under the guise that it "is consistent with public health and safety." 21 U.S.C. § 822(d) (waiving registration requirements for certain manufacturers, distributors and dispensers if consistent with public health and safety); Olsen, 878 F.2d at 1466 app. (DEA Final Order) ("There is no mechanism for an exemption to scheduling for religious purposes."). The government's regulatory exemption for peyote, 21 C.F.R. § 1307.31, later enacted by statute, 42 U.S.C. § 1996a, was at all times a product of congressional will. See Rush, 738 F.2d at 513 (noting the "sui generis legal status of the American Indians"). The panel opinion recognized this when it rejected an equal protection argument that because the Native American Church's use of peyote is protected, so too should be the use of hoasca. See O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 342 F.3d 1170, 1186 n.4 (10th Cir. 2003). The panel relied upon Peyote Way Church of God v. Thornburgh, 922 F.2d 1210, 1216 (5th Cir. 1991), which held that an exemption for the Native American Church members to use peyote was rationally related to the government's trust responsibility to preserve Native American culture. To read the exemption for the Native American Church as an indication that Congress and the Executive have not precluded "a particularized assessment of the risks involved in specific sacramental use" of controlled substances, Opinion of McConnell, J., at 25-27, proves too much--the concurring opinion can point to no other controlled substance receiving like treatment.
The CSA envisions careful scheduling of substances. See 21 U.S.C. § 811(c) (listing eight factors which Attorney General must consider before adding or removing a substance from schedules); id. § 812(b) (findings necessary for adding a substance to a schedule); id. § 811(a) (requirement of notice and a hearing before Attorney General may add or remove a substance from schedule). It also envisions medical and scientific uses of controlled substances in the public interest and consistent with public health and safety; "[n]either manufacturing, distribution or dispensing contemplates the possession of controlled substances for other than legitimate medical or research purposes." Olsen, 878 F.2d at 1466 app. (DEA Final Order); see also 21 U.S.C. § 823(a)-(b). Finally, the CSA allocates the burden of production in favor of the government: in any proceeding brought by the government under Title 21, the burden of going forward with evidence of any exemption or exception falls on the person claiming its benefit. 21 U.S.C. § 885(a)(1) (government is not required to negative any exemption or exception).
The careful approach of the CSA should be contrasted with that of this court. Although this court recognizes that "the interests of the government as well as the more general public are harmed if the government is enjoined from enforcing the CSA against the general importation and sale of street drugs, or from complying with the treaty," it then characterizes this case as one "about importing and using small quantities of a controlled substance in the structured atmosphere of a bona fide religious ceremony." Opinion of Seymour, J., at 22-23. Can the free exercise of religion under RFRA really turn on whether the adherent has a religious affinity for street drugs or more esoteric ones?(8)
In light of the congressional purpose behind RFRA of reinstating the pre-Smith compelling interest test, 42 U.S.C. § 2000bb(b)(1), the routine rejection of religious exemptions from drug laws in the pre-Smith era, and the congressional findings undergirding the placement of DMT among the most dangerous and addictive of drugs (i.e., Schedule I substances), UDV has failed to demonstrate that it is likely to succeed on the merits of its claim that RFRA entitles it to freely import and dispense hoasca.
2. United Nations Convention on Psychotropic Substances
The United States argues convincingly that a preliminary injunction requiring it to violate the Convention could seriously impede its ability to gain the cooperation of other nations in controlling the international flow of illegal drugs. See 21 U.S.C. § 801a(1) ("Abuse of psychotropic substances has become a phenomenon common to many countries . . . and is not confined to national borders. It is, therefore, essential that the United States cooperate with other nations in establishing effective controls over international traffic in such substances.").(9) The district court erroneously concluded that the Convention did not cover hoasca. Judge McConnell does not appear to directly address the merits of the district court's conclusion, instead concluding that the government has failed to carry its burden under RFRA of demonstrating narrow tailoring. Opinion of McConnell, J., at 29-33. Judge Seymour, on the other hand, takes an entirely different tack. In her separate opinion, she asserts that because the Convention includes a provision allowing "signatory nations to seek an exemption from the treaty for indigenous plants containing prohibited substances 'traditionally used by certain small, clearly determined groups in magical or religious rites,'" the government's "argument that it will be significantly harmed by a preliminary injunction temporarily restraining it from enforcing the treaty against the UDV does not ring entirely true." Opinion of Seymour, J., at 25. The district court, Judge McConnell, and Judge Seymour are all incorrect.
For those reasons set out in the panel dissent, hoasca is a preparation containing a Schedule I substance covered by the Convention. O Centro Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting). Article 7 of the Convention obligates signatory nations to prohibit all uses of Schedule I substances and to prohibit the import and export of those substances. Convention, supra, at 1, art. 7, 32 U.S.T. 543. The congressional findings in 21 U.S.C. § 801a(1) make clear that international cooperation and compliance with the Convention are essential in providing effective control over the cross-border flow of such substances. In addition, the record contains the declaration of Robert E. Dalton, a State Department lawyer for the Treaty Affairs Office. Dalton's declaration asserts that the need to avoid a violation of the Convention is compelling and that a violation of the Convention would undermine the United States' role in curtailing illicit drug trafficking. It appears that the Dalton declaration is unopposed. In light of the plain meaning of the Convention, the congressional findings on the importance of cooperation, and the Dalton declaration, UDV has not demonstrated a substantial likelihood that it will prevail on the merits of its RFRA claim.
In his separate opinion, Judge McConnell asserts that (1) the government deprived this court of "evidence" necessary to interpret the Convention and (2) the government failed to demonstrate that strictly prohibiting the import and consumption of hoasca is the least restrictive means of furthering its interest in complying with the Convention. Opinion of McConnell, J., at 29, 30-33. Judge McConnell's assertions are flawed in several respects.
First and foremost, the interpretation of the Convention is a question of law. See, e.g., Ehrlich v. Am. Airlines, Inc., 360 F.3d 366, 370 (2d Cir. 2004) (holding that proper interpretation of an international treaty is a question of law subject to de novo review); United States v. Garrido-Santana, 360 F.3d 565, 576-77 (6th Cir. 2004) (same); United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir. 2004) (same); Smythe v. United States Parole Comm'n, 312 F.3d 383, 385 (8th Cir. 2002) (same). Here, the district court unequivocally concluded that the Convention did not apply to hoasca. For those reasons set out in the panel dissent, the district court's legal conclusion is erroneous. O Centro Espirita, 342 F.3d at 1192-93 (Murphy, J., dissenting). That the district court did not hold a hearing on this question, does not foreclose this court from recognizing the district court's legal error. When interpreting a treaty this court must "first look to its terms to determine its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 663 (1992). As set out in the panel dissent, and as elaborated supra, the plain language of the Convention makes clear that all signatories must prohibit the international trafficking of hoasca.
Based on its erroneous legal conclusion that the Convention did not apply to hoasca, the district court precluded the government from presenting evidence regarding the Convention at the evidentiary hearing. In a letter to the parties, the district court indicated as follows: "I have reviewed the parties' briefs on [UDV's] Motion for Preliminary Injunction. I believe that it will be necessary to hold an evidentiary hearing on the following factual issues: 1) the health risks associated with the ceremonial use of hoasca; 2) the potential for diversion of hoasca to non-ceremonial use . . . ." Of course, as noted above, whether hoasca is covered by the Convention is a question of law for the court to decide, not a question of fact like those questions identified by the district court in its letter. Thus, it is strange to assert, as does Judge McConnell, that it would be premature to reach this issue because the district court did not hold an evidentiary hearing on the matter. Opinion of McConnell, J., at 29.
Nor is it altogether accurate to assert that it was the defendants who opposed the introduction of evidence on this question at the hearing. Id. Judge McConnell asserts that UDV "attempted to present evidence regarding the interpretation of the Convention by the International Narcotics Control Board [("INCB")], the international enforcing agency, including a letter by the Secretary of the Board stating that hoasca is not controlled under the Convention." Id. (emphasis added). Judge McConnell makes it appear that UDV sought to produce multiple items of evidence, only one component of which was a letter from the Secretary of the INCB. In fact, UDV merely sought to question a witness about the contents of Plaintiff's Exhibit 54, a letter from the Secretary of the INCB. That letter had already been admitted into evidence and used by both UDV and the government in questioning witnesses regarding the efficacy of the control measures for Schedule I and II drugs under the Convention. Furthermore, as noted by the government below, there are serious questions as to the relevance of the Secretary's opinion regarding whether hoasca is covered by the Convention.
Judge McConnell further asserts that based on a narrow objection by the United States, the district court excluded the evidence, depriving this court of "interpretive history" necessary to a resolution of this appeal.(10) It is far from clear, however, that Plaintiff's Exhibit 54 is as important as Judge McConnell would assume, since neither party saw fit to include it in the record on appeal. Nor is it accurate to assert that the sole basis of the government's objection to the line of questioning was that the district court had not asked the parties to present evidence on the issue. Opinion of McConnell, J., at 29. Instead, the government objected on multiple grounds: (1) the questions were beyond the scope of redirect examination; (2) the letter was legally irrelevant; (3) the district court had previously informed the parties that no evidence would be taken on the Convention; and, most importantly, (4) whether hoasca is covered by the Convention was a legal question for the court to decide.(11) Taken in context, then, it is not appropriate to hold the government responsible, as does Judge McConnell, for the district court's failure to hold a hearing on whether compliance with the Convention is a compelling governmental interest. Id.
Nor is it appropriate to fault the government for failing to demonstrate that strictly prohibiting the importation and consumption of DMT, in the form of hoasca, is the least restrictive way to further the government's interest in complying with the Convention. Opinion of McConnell, J., at 30. The problem, of course, is that the district court short-circuited the government's ability to present evidence on this particular question when it concluded that the Convention did not apply to hoasca. Under these circumstances, it seems strange to punish the government for this purported evidentiary deficiency. As we have it, the Dalton declaration is the only evidence in the record on the question and is uncontradicted. With the record in this state, UDV has failed to demonstrate a substantial likelihood of success on the merits.(12)
In response, Judge McConnell envisions an elaborate process whereby, to demonstrate narrow tailoring, the government is obligated to request that DMT be removed from the schedule of drugs covered by the Convention. Opinion of McConnell, J., at 30-31. That is, until the government seeks to have DMT removed from coverage by the Convention, it cannot demonstrate that "strict" prohibitions against the import of DMT are the least restrictive means of advancing its interest in complying with the Convention. It is worth noting at the outset that this argument is not advanced on appeal by UDV. In any event, Congress has specifically found that DMT is a highly dangerous and addictive substance. It is difficult to see how asking that DMT be removed from the schedule of drugs covered by the Convention advances the government's interests in any way. To the extent that Judge McConnell is implying that the government could seek an exemption allowing importation into and consumption of DMT in the United States, whether or not that DMT came in the form of hoasca, while the remaining signatories remain bound by the terms of the Convention to prevent international trafficking in DMT, his assertion finds absolutely no support in the language of Article 2. There is simply nothing in that particular Article allowing signatory nations to pick and choose which of the Scheduled drugs they will criminalize. It is certainly true that signatory nations can object to the scheduling of new psychotropic drugs and can ask that drugs already scheduled be reclassified. Opinion of McConnell, J., 30-31. Those provisions do not, however, allow for a single nation opt-out; instead, they establish the schedule of drugs that all signatory nations will be obligated to criminalize. It is incongruous to obligate the government to seek to remove DMT from the coverage of the Convention in order to demonstrate that its efforts to restrict the importation and consumption of DMT are the least restrictive means of complying with the Convention.
Judge Seymour does not endorse the district court's conclusion that the Convention does not apply to hoasca. Instead, she asserts that the availability of the exemption in Article 32 of the Convention demonstrates that no significant harm will flow to the government from the injunction. Opinion of Seymour, J., at 24-25; see also Opinion of McConnell, J., at 31-32 (asserting that the failure of the government to seek a reservation under Article 32(4) on behalf of UDV demonstrates the government failed to prove that the strict prohibition against the importation and consumption of hoasca is the least restrictive means of furthering its interest in complying with the Convention). What Judges Seymour and McConnell fail to acknowledge, however, is that the exemption set out in Article 32(4) allows signatory nations to make a reservation as to all of the provisions of Article 7, except for the provisions of Article 7 prohibiting the international trafficking of psychotropic substances. Article 32(4) specifically provides as follows:
A State on whose territory there are plants growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites, may, at the time of signature, ratification or accession, make reservations concerning these plants, in respect of the provisions of article 7, except for the provisions relating to international trade.
Convention, supra, at 1, art. 32(4), 32 U.S.T. 543 (emphasis added). In light of this very specific language, it is not possible to treat the exemption set out in Article 32 as diminishing the significant injury to the government flowing from an injunction mandating that the government allow the importation of hoasca.
B. Balance of Harms and Public Interest
For those reasons set out above, UDV has not demonstrated a substantial likelihood of success on the merits of its RFRA claim. This is especially true in light of the heightened burden on UDV to demonstrate its entitlement to a preliminary injunction that upends the status quo. Independent of the question of likelihood of success on the merits, however, UDV has not demonstrated that its harm outweighs the harm flowing to the government as a result of the preliminary injunction or that the preliminary injunction is not adverse to the public interest.
RFRA provides that once a person proves that a law substantially burdens the exercise of religion, the government has the burden of going forward and of persuasion in proving that the law furthers a compelling governmental interest and that the law as applied is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. §§ 2000bb-1(a), 2000bb-1(b)(1)-(2), 2000bb-2(3). Though this is a demanding test, see City of Boerne v. Flores, 521 U.S. 507, 534 (1997), it seems particularly appropriate to insist that a movant meet all elements of the preliminary injunction test because RFRA goes beyond the protections offered by the First Amendment. See Kikumura v. Hurley, 242 F.3d 950, 955, 962 (10th Cir. 2001) (requiring consideration of all preliminary injunction elements with RFRA claim). In other words, RFRA is not the First Amendment and UDV has no valid claim that its First Amendment rights are being violated given that the CSA is a neutral law of general applicability. See Smith, 494 U.S. at 885; United States v. Meyers, 95 F.3d 1475, 1481 (10th Cir. 1996). Given evenly balanced evidence concerning the health risks of DMT usage and its potential diversion, UDV cannot satisfy its burden of showing that its injury outweighs any injury to the government and that an injunction would not be adverse to the public interest.
1. Controlled Substances Act
First and foremost, as set out above, Congress has specifically found that the importation and consumption of controlled substances is adverse to the public interest. 21 U.S.C. §§ 801(2), 801a(1). Congress has specifically found that the drug at issue here, DMT, has high potential for abuse and is not safe to consume even under the supervision of medical personnel. Id. § 812(b)(1), (c), sched. I(c)(6).(13)
Against this backdrop, the district court found that the evidence was in equipoise as to the risk of diversion of hoasca to non-religious purposes and the danger of health complications flowing from hoasca consumption by UDV members. As noted above, both Judge Seymour and Judge McConnell erroneously rely on this finding to conclude that the United States has not carried its burden of demonstrating that the restrictions in the CSA against the importation and consumption of hoasca further the United States' compelling interests and that, concomitantly, UDV is substantially likely to prevail on the merits of its RFRA claim. Opinion of Seymour, J., at 21; Opinion of McConnell, J., at 17-18. The United States, however, has no such burden at the third and fourth steps of the preliminary injunction analysis. At these stages, it is UDV that must demonstrate the requested preliminary injunction is not adverse to the public interest and its harm outweighs any harm to the government. Furthermore, because the preliminary injunction UDV is requesting would upset the status quo, it must show that the exigencies of the case entitle it to this extraordinary interim relief and that the balance of harms favors the issuance of an otherwise disfavored interim remedy. In light of the congressional findings noted above and the equipoised nature of the parties' evidentiary submissions, UDV has not met its burden.(14)
The United States suffers irreparable injury when it is enjoined from enforcing its criminal laws. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (Rehnquist, Circuit Justice 1977). This injury to the United States, which when coupled with UDV's failure of proof on the questions of diversion and danger to UDV members prevents UDV from meeting its burden under the third and fourth preliminary injunction factors, is exacerbated by the burdensome and constant official supervision and oversight of UDV's handling and use of hoasca affirmatively required by the injunction in this case. The district court's preliminary injunction is eleven pages long and contains thirty-six paragraphs; it modifies or enjoins enforcement of a staggering number of regulations implementing the CSA, with the result that the United States must actually set about to aid UDV in the importation of an unlimited supply of hoasca.(15) UDV has not carried its burden of demonstrating that its injury, although admittedly irreparable, sufficiently outweighs the harm to the government so as to warrant interim relief that alters the status quo pending a determination of the merits.(16)
Unfortunately, Judge Seymour's separate opinion could be read as shifting the burden to the government to prove that its harm flowing from an injunction prohibiting enforcement of the CSA outweighs the harm to UDV and that the preliminary injunction is not adverse to the public interest. Opinion of Seymour, J., at 24 ("As the UDV established to the district court's satisfaction, neither of the potential harms asserted by the government are more likely than not to occur. Thus, the balance is between actual irreparable harm to plaintiff and potential harm to the government which does not even rise to the level of a preponderance of the evidence."). The problem with such an approach is that even when a requested preliminary injunction does not alter the status quo, the movant has the burden of demonstrating, clearly and unequivocally, that it is entitled to interim relief that is always extraordinary. Dominion Video Satellite, Inc. v. Echostar Satellite Corp., 356 F.3d 1256, 1260-61 (10th Cir. 2004). Because this particular preliminary injunction does alter the status quo, UDV must make an even more rigorous showing, as set out above, of its entitlement to interim relief. See supra at 9-10. With this in mind, it must be noted that it is UDV that failed to show by a preponderance of the evidence there was no risk of diversion and no risk to the health of UDV members. The government has no such burden of proof at the third and fourth stages of the preliminary injunction analysis. To conclude that UDV satisfied its burden defies the record and the district court's findings that the evidence is in equipoise.
Judge Seymour's discussion of the balancing of the harms flowing from enjoining enforcement of the CSA is similarly unconvincing. UDV would certainly suffer an irreparable harm, assuming of course that it is likely to succeed on the merits of its RFRA claim. On the other hand, the magnitude of the risk of harm to the government is unquestionably substantial. Although the harm identified by the government is a risk of diversion and a risk of adverse health consequences to members of UDV or to a member of the public who obtains diverted hoasca, if the risk comes to fruition the consequences could be deadly. As explained above, UDV failed to demonstrate that there is no risk of diversion or of adverse health consequences to UDV members. As the district court's findings demonstrate, it is just as likely as not that hoasca will be diverted and that members of UDV and the public will suffer adverse health consequences. Cf. 21 U.S.C. § 812(b)(1), (c), sched. I(c)(6) (finding that DMT is unsafe to consume even under medical supervision). Both Judge Seymour and Judge McConnell seriously undervalue the magnitude of the risks identified by the government in concluding that UDV's actual harm outweighs the risks of harm identified by the government.
At its base, the concurring opinion of Judge McConnell would convert RFRA into a 900-pound preliminary injunction gorilla. According to Judge McConnell, the third and fourth preliminary injunction factors have no real play when RFRA is involved. Opinion of McConnell, J., at 36-37 ("When the government fails to demonstrate its compelling interest in burdening a constitutional right, courts routinely find that, in the absence of a compelling justification for interference, the balance of harms and public interest also favor protecting the moving party's burdened rights."). Thus, according to Judge McConnell, once a party demonstrates a substantial likelihood of success on the merits in a RFRA case, the inquiry is complete. Id. Other than simply noting that Congress passed RFRA only to restore the compelling interest test from Sherbert v. Verner, 374 U.S. 398 (1963), Judge McConnell offers no real support for his implicit proposition that RFRA renders irrelevant each of the remaining preliminary injunction factors.(17) Judge McConnell thus rewrites RFRA so that it would now legislatively overrule decades of preliminary injunction jurisprudence, something RFRA does not do expressly.
Equally unconvincing is Judge McConnell's assertion that equitable considerations that might not carry the day for the government at the likelihood-of-success-on-the-merits stage are rendered irrelevant by RFRA at the balancing-of-harms and public-interest stages. Opinion of McConnell, J., at 36 ("[T]he dissent attempts to make an end run around RFRA's reinstatement of strict scrutiny by repackaging all of the arguments that would be relevant to the merits (where the presumption of invalidity would clearly apply) as arguments about the equities (where it is disregarded)."). The preliminary injunction is, after all, an equitable remedy. Even where a movant demonstrates that it is substantially likely to prevail on the merits, a showing that UDV has failed to make, there may very well be equitable considerations counseling against the granting of extraordinary relief prior to a final determination on the merits. This is just such a case. Without regard to whether UDV is substantially likely to prevail on the merits, the evidence adduced before the district court raises such serious questions about the adverse health effects of hoasca, both as to UDV members and the public at large, and about the consequences of forced non-compliance with the Convention that interim equitable relief is not appropriate in this case.
Nor does the Supreme Court's recent decision in Ashcroft v. ACLU, 124 S. Ct. 2783 (2004), support Judge McConnell's assertion that equitable considerations are irrelevant under RFRA, once a movant has demonstrated a substantial likelihood of success on the merits. See Opinion of McConnell, J., at 38-40. Judge McConnell cites the following passage from Ashcroft in support of his proposition:
As mentioned above, there is a serious gap in the evidence as to the effectiveness of filtering software. . . . For us to assume, without proof, that filters are less effective than COPA would usurp the District Court's factfinding role. By allowing the preliminary injunction to stand and remanding for trial, we require the Government to shoulder its full constitutional burden of proof respecting the less restrictive alternative argument, rather than excuse it from doing so.
Opinion of McConnell, J., at 39-40 (quoting Ashcroft, 124 S. Ct. at 2794). Contrary to Judge McConnell's assertion, this passage simply does not relate in any fashion to the equitable process of balancing the competing harms or examining how a requested injunction would affect the public interest that occurs at the third and fourth stages of the preliminary injunction inquiry. Instead, it relates only to the question whether the movants in that case were likely to prevail on the merits. See Ashcroft, 124 S. Ct. at 2791-92 ("As the Government bears the burden of proof on the ultimate question of COPA's constitutionality, respondents must be deemed likely to prevail unless the Government has shown that respondents' proposed less restrictive alternatives are less effective than COPA.").
To the extent that there is any meaningful discussion in Ashcroft of the particular issue before this court,(18) Ashcroft supports the approach set out in this opinion. In concluding that the preliminary injunction should stand under the particular circumstances of that case, the Ashcroft Court noted as follows:
[T]he potential harms from reversing the injunction outweigh those of leaving it in place by mistake. Where a prosecution is a likely possibility, yet only an affirmative defense is available, speakers may self-censor rather than risk the perils of trial. There is a potential for extraordinary harm and a serious chill upon protected speech. The harm done from letting the injunction stand pending a trial on the merits, in contrast, will not be extensive. No prosecutions have yet been undertaken under the law, so none will be disrupted if the injunction stands. Further, if the injunction is upheld, the Government in the interim can enforce obscenity laws already on the books.
Ashcroft, 124 S. Ct. at 2794 (citation omitted). This passage indicates that "practical" considerations, including considerations that might not carry the day at the likelihood-of-success-on-the-merits stage, are nevertheless relevant when a court is undertaking a weighing of the equities. Id. In this case, those practical considerations most assuredly counsel against granting interim relief to UDV. The record clearly indicates, and the district court found, that it is just as likely as not that UDV members will suffer adverse health consequences as a result of the consumption of hoasca and that hoasca will be diverted to the general public. Furthermore, with the preliminary injunction in place, the government is left with no alternative avenues to further the important public safety policies underlying the CSA. This is in stark contrast to the situation in Ashcroft, wherein the government could "in the interim [continue to] enforce obscenity laws already on the books." Id. For those reasons set out above, this is clearly one of those cases where equitable considerations weigh heavily against the entry of a preliminary injunction, even assuming UDV has demonstrated a substantial likelihood of prevailing on the merits.
2. United Nations Convention on Psychotropic Substances
As noted above, a preliminary injunction requiring the United States to violate the Convention could seriously impede the government's ability to gain the cooperation of other nations in controlling the international flow of illegal drugs. 21 U.S.C. § 801a(1) ("Abuse of psychotropic substances has become a phenomenon common to many countries . . . and is not confined to national borders. It is, therefore, essential that the United States cooperate with other nations in establishing effective controls over international traffic in such substances."). Furthermore, the only evidence in the record on this question, the Dalton declaration, indicates the need to avoid a violation that would undermine the United States' role in curtailing illicit drug trafficking.
Without regard to whether the declaration and congressional findings are sufficient to carry the government's burden of demonstrating that absolute compliance with the Convention is the least restrictive means of advancing the government's compelling interest, the declaration, taken together with the congressional findings, certainly bears on the question of harm to the United States and the adversity of the preliminary injunction to the public interest. These matters were not even addressed by the district court. In light of the declaration, the congressional findings, and the extant status quo, UDV has simply not carried its burden of demonstrating that its interest in the use of sacramental hoasca pending the resolution of the merits of its complaint outweighs the harm resulting to the United States from a court order mandating that it violate the Convention. Nor has UDV shown that such an injunction is not adverse to the public interest.
III.
The court correctly reaffirms the central holding in SCFC ILC that when a movant is seeking one of the three historically disfavored types of preliminary injunctions, the movant must satisfy a higher burden. I, therefore, join parts I, II, and III.A of the per curiam opinion.
For those reasons set out above, UDV has failed to make the strong showing necessary to demonstrate its entitlement to a judicially ordered alteration of the status quo pending the resolution of the merits of this case. First, UDV has not demonstrated a substantial likelihood of success on the merits. The government's assertion that the ban on the consumption of DMT/hoasca is necessary to protect the health of UDV members and to prevent diversion of a Schedule I psychotropic drug to the general population is fully supported by the congressional findings set out in the CSA. 21 U.S.C. §§ 801(2), 801a(1), 812(b)(1), 812(c), sched. I(c)(6). These same congressional findings also demonstrate the need for uniformity in administration of the drug laws. See Smith, 494 U.S. at 905-06 (O'Connor, J., concurring); Israel, 317 F.3d at 771. At the same time, it is clear that Congress enacted RFRA to restore the pre-Smith compelling interest test. 42 U.S.C. § 2000bb(a). Prior to Smith, courts routinely rejected religious exemptions from laws regulating controlled substances. See supra at 19-20 (setting out pre- and post-RFRA cases rejecting religious exemptions from neutrally applicable drug laws). There is simply nothing in the legislative history of RFRA to indicate that it was intended to mandate a drug-by-drug, religion-by-religion judicial reexamination of the nation's drug laws. UDV has failed to demonstrate that it is substantially likely to prevail on its claim that RFRA exempts it from the prohibition against the consumption of DMT set out in the CSA. UDV has likewise failed to demonstrate that it is substantially likely to prevail on its RFRA claim, when measured against the government's interest in complying with the Convention. Congress specifically found that international cooperation is necessary to stem the international flow of psychotropic drugs. 21 U.S.C. § 801a(1). The Dalton declaration demonstrates that an injunction forcing the United States into non-compliance with the Convention could undermine the United States' efforts to obtain international cooperation to control the cross-border traffic in illegal drugs. Because UDV has failed to demonstrate a substantial likelihood of success on the merits, it is not entitled to a preliminary injunction.
Even setting aside the question of whether UDV is substantially likely to prevail on the merits, UDV has independently failed to carry its heavy burden of establishing that the balance of harms and the public interest favors the issuance of a preliminary injunction. Setting aside the Convention for the moment and considering these factors only in relation to the CSA, UDV failed to establish entitlement to extraordinary interim relief altering the status quo. The district court found, as part of its analysis of likelihood of success on the merits, that the evidence regarding risk of diversion and harm to members of UDV was virtually balanced and in equipoise. In other words, the district court found that it is just as likely as not that hoasca will be diverted to the general public and that members of UDV will suffer harm from the consumption of hoasca. These findings make it clear that UDV failed to muster sufficient evidence to demonstrate that the balance of harms weighs clearly and unequivocally in its favor and that the public interest clearly and unequivocally favors the entry of a preliminary injunction. The harm to the government and public interest is not, however, singularly related to the CSA. Harm to the government and the public interest resulting from the court-ordered violation of the Convention remain unaddressed by UDV or the district court. Furthermore, both Judge Seymour's and Judge McConnell's attempts to minimize the significant harm flowing to the government as a result of its forced non-compliance with the Convention are flawed. With the evidence of the balance of harms and public interest in such a state, UDV has utterly failed to meet its burden under the third and fourth preliminary injunction factors.
I would reverse the district court's entry of a preliminary injunction. Because a majority of the court concludes otherwise, I respectfully dissent from parts III.B and IV of the per curiam opinion.
No.
02-2323; O Centro Espirita Beneficiente
Uniao Do Vegetal v. Ashcroft
SEYMOUR, Circuit Judge, concurring in part and dissenting in part, joined in full by TACHA, Chief Judge, PORFILIO, HENRY, BRISCOE, and LUCERO, Circuit Judges, and in Part II by McCONNELL and TYMKOVICH, Circuit Judges.
Like a majority of my colleagues, I am persuaded that the district court did not abuse its discretion in granting the preliminary injunction in this case. I respectfully dissent, however, from the majority's conclusion that the movant for a preliminary injunction must satisfy a heightened burden when the proposed injunction will alter the status quo but the injunction is not also mandatory.
I
It is well established that "[a] preliminary injunction is an extraordinary remedy; it is the exception rather than the rule." GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984). Its commonly asserted purpose is to "preserve the relative positions of the parties until a trial on the merits can be held." Univ. of Texas v. Camenisch, 451 U.S. 390, 395 (1981). See also 11A Charles Alan Wright et al., Federal Practice and Procedure § 2947 at 123 (2d ed. 1995) (purpose of preliminary injunction is to prevent non-movant from taking unilateral action which would prevent court from providing relief to the movant on the merits).
In making the equitable determination to grant or deny a preliminary injunction, courts tend to balance a variety of factors. We have stated generally that a court will grant preliminary relief only if the plaintiff shows "(1) a substantial likelihood of success on the merits of the case; (2) irreparable injury to the movant if the preliminary injunction is denied; (3) the threatened injury to the movant outweighs the injury to the other party under the preliminary injunction; (4) the injunction is not adverse to the public interest." Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001). These factors provide guideposts for a court in its attempt to minimize any harm that would result from the grant or denial of preliminary relief. The manner by which a court considers the factors, the relative weight given to each, and the standards by which a movant is required to prove them, are driven by the special and unique circumstances of any given case.
As noted by Professor Dobbs:
[T]he gist of the standards is probably easy to understand in common sense terms even if the expression is imperfect: the judge should grant or deny preliminary relief with the possibility in mind that an error might cause irreparable loss to either party. Consequently the judge should attempt to estimate the magnitude of that loss on each side and also the risk of error.
Dan B. Dobbs, Law of Remedies § 2.11(2) at 189 (2d ed. 1993) (emphasis added). American Hosp. Supply Corp. v. Hospital Prods. Ltd., 780 F.2d 589 (7th Cir. 1986), epitomizes this approach, noting that when a district court is
asked to decide whether to grant or deny a preliminary injunction [it] must choose the course of action that will minimize the costs of being mistaken. . . . If the judge grants the preliminary injunction to a plaintiff who it later turns out is not entitled to any judicial relief whose legal rights have not been violated the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the injunction causes to the defendant while it is in effect. If the judge denies the preliminary injunction to a plaintiff who it later turns out is entitled to judicial relief, the judge commits a mistake whose gravity is measured by the irreparable harm, if any, that the denial of the preliminary injunction does to the plaintiff.
Id. at 593. Due to this inherently fluid, multi-faceted, and equitable process, we review a district court's decision to grant or deny injunctive relief for abuse of discretion. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). In so doing, we should keep in mind that
the district judge had to act in haste, that he had to balance factors which, though they can be related in a neat formula, usually cannot be quantified, and that in dealing with the parties and their witnesses and counsel in the hectic atmosphere of a preliminary-injunction proceeding the judge may have developed a feel for the facts and equities that remote appellate judges cannot obtain from a transcript.
American Hosp. Supply Corp., 780 F.2d at 594-95. Thus "it is not enough that we think we would have acted differently in the district judge's shoes; we must have a strong conviction that he exceeded the permissible bounds of judgment." Id. at 595.
A.
In SCFC ILC, we held that movants
requesting certain preliminary injunctions must meet a heightened standard
instead of satisfying the ordinary preliminary injunction test. We detailed
that a party who seeks an injunction which either changes the status quo, is
mandatory rather than prohibitory, or provides the movant with substantially
all the relief he would recover after a full trial on the merits, was required
to "show that on balance, the four [preliminary injunction] factors weigh
heavily and compellingly in his favor."
SCFC ILC, Inc., 936 F.2d at
1099 (emphasis added). We appear to be the only court which has adopted the
specific approach of carving out three distinct categories of disfavored
injunctions. Other courts have limited to two categories those preliminary
injunctions deserving special scrutiny: injunctions which are mandatory or
which provide the moving party with all the relief it seeks from a full trial
on the merits. See, e.g., In re Microsoft Corp. Antitrust Litig., 333 F.3d 517,
526 (4th Cir. 2003); Tom Doherty Assocs.
v. Saban Entm't, 60 F.3d 27, 34-35 (2d Cir. 1995); Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir. 1994); Wetzel v. Edwards, 635 F.2d 283, 286
(4th Cir. 1980); Anderson v. United
States, 612 F.2d 1112, 1114-15 (9th Cir. 1980).(1)
In order to bring our jurisprudence in closer accord with these other circuits,
and because I am convinced it will cause less confusion to the parties and the
district court, I would limit our heightened standard to those two categories
of preliminary injunctions.
In doing so, I
do not denigrate the general notion that the purpose of a preliminary
injunction is to preserve the status quo between the parties pending a full
trial on the merits. But this general maxim should not be taken merely at face
value or become a goal in and of itself. Rather, the very purpose of preserving
the status quo by the grant of a preliminary injunction is to prevent
irreparable harm pending a trial on the merits. See, e.g., In re Microsoft,
333 F.3d at 525 ("The traditional office of a preliminary injunction is to
protect the status quo and prevent irreparable harm during the pendency of a
lawsuit ultimately to preserve the court's ability to render a meaningful
judgment on the merits."); Matzke v.
Block, 542 F. Supp. 1107, 1113 (D. Kan. 1982) ("The purpose of a
preliminary injunction is two-fold: it protects the plaintiff from irreparable
injury and it preserves the court's ability to decide the case on the
merits."); 11A Wright & Miller, § 2947 at 121 ("a preliminary
injunction is an injunction that is issued to protect plaintiff from
irreparable injury and to preserve the court's power to render a meaningful
decision after a trial on the merits").
Given the
essential role prevention of irreparable harm plays in the grant of preliminary
injunctive relief,(2)
district courts should consider the question of altered status quo in light of
how it impacts the balance of harms between the parties and the public
interest, as well as considering what attendant institutional costs may
accompany the grant of such relief. As the Fifth Circuit has said, "[i]f
the currently existing status quo itself is causing one of the parties
irreparable injury, it is necessary to alter the situation so as to prevent the
injury." Canal Auth. of the State of Florida v. Callaway, 489 F.2d 567, 576
(5th Cir. 1974) (citations omitted). Other courts echo this refrain, noting that
where preserving the status quo will perpetuate harm against the moving party,
an order altering the status quo may be appropriate. See, e.g., Friends For All
Children v. Lockheed Aircraft Corp., 746 F.2d 816, 830 n.21 (D.C. Cir.
1984); Crowley v. Local No. 82, Furniture
& Piano Moving, 679 F.2d 978, 995 (1st Cir. 1982), reversed on other grounds, 476 U.S. 526 (1984); see also 11A Wright & Miller § 2948
at 133-35. For these reasons, "[t]he focus always must be on prevention of
injury by a proper order, not merely on preservation of the status
quo." Canal Auth., 489 F.2d at 576. Thus a court's examination of the status
quo should occur during the process of balancing the various interests and
harms among the parties and the public.
B.
Our circuit
currently employs three different standards when granting preliminary
injunctions. As a base line, we have articulated that a party's right to
injunctive relief must be "clear and unequivocal." See
SCFC ILC Inc., 936 F.2d at 1098 (citing Penn
v. San Juan Hosp., 582 F.2d 1181, 1185 (10th Cir. 1975)). At one end of the
spectrum, we have applied SCFC ILC's
"heavily and compellingly" language to injunctions requiring
heightened scrutiny. Id. at 1098-99. At the other end, we
have adopted a modified approach for the "likelihood of success on the
merits" aspect of the four part preliminary injunction test for certain
circumstances. Under this alternative approach, if the moving party establishes
that the last three factors of the test are in its favor, the party may
ordinarily satisfy the first factor by "showing that questions going to
the merits are so serious, substantial, difficult and doubtful as to make the
issue ripe for litigation and deserving of more deliberate
investigation." Federal Lands Legal Consortium v. United
States, 195 F.3d 1190, 1195 (10th Cir. 1999). Within this paradigm, and in
accordance with the principle that a preliminary injunction should preserve the
parties' positions to prevent irreparable harm and allow the court to make a
meaningful decision on the merits, the court's focus properly remains on the
balance of relative harms between the parties.
In general,
"[e]mphasis on the balance of [irreparable harm to plaintiffs and
defendants] results in a sliding scale that demands less of a showing of
likelihood of success on the merits when the balance of hardships weighs
strongly in favor of the plaintiff, and vice versa." In re
Microsoft, 333 F.3d at 526. Thus, the more likely a movant is to succeed on
the merits, "the less the balance of irreparable harms need favor the
[movant's] position." Ty, Inc. v. Jones Group, Inc., 237 F.3d
891, 895 (7th Cir. 2001). And, alternatively, "if there is only slight
evidence that plaintiff will be injured in the absence of interlocutory relief,
the showing that he is likely to prevail on the merits is particularly
important." Canal Auth., 489
F.2d at 576-77. The rationality of this approach is evident: where there is a
strong indication that the plaintiff is correct on the merits, the less it is
likely that the defendant will be harmed by the issuance of a preliminary
injunction; where there is little likelihood a plaintiff will be irreparably
harmed, preliminary relief is unwarranted unless it is virtually certain
plaintiff will win on the merits.
Given the
special considerations and potential administrative costs at stake when a court
issues a mandatory preliminary injunction, we should more closely scrutinize
whether the irreparable harm to the movant substantially outweighs any harm to
the non-movant or to the public interest. The movant should clearly show the
exigencies of the situation justify the rather unusual injunction. See
Tom Doherty Assocs., 60 F.3d at 34
("[A] mandatory injunction should issue only upon a clear showing that the
moving party is entitled to the relief requested, or where extreme or very
serious damage will result from a denial or preliminary relief." (internal
quotations omitted)); Anderson, 612
F.2d at 1114 (mandatory preliminary relief justified only where "facts and
law clearly favor the moving party" or where "extreme or very serious
damage will result"); In re
Microsoft, 333 F.3d at 525 (showing for preliminary mandatory relief
"must be indisputably clear"); Wetzel,
635 F.2d at 286 (mandatory preliminary injunctions "should be granted only
in those circumstances when the exigencies of the situation demand such
relief").
Although a mandatory
injunction should be granted only where the moving party makes a strong showing
that all the preliminary injunction factors weigh in its favor, we should
abandon use of the "heavily and compellingly" language employed in SCFC ILC, see 936 F.2d at 1098-99, which is not used by any other circuit. In
addition, because a party seeking the grant of a mandatory preliminary
injunction must make this stronger showing, the party should not be able to
rely on our circuit's modified likelihood of success on the merits standard,
even where the balance of harms favors the movant. Rather, the movant for a
mandatory preliminary injunction must also establish a substantial likelihood
of success on the merits. See Tom Doherty Assocs., 60 F.3d at
33-34 (party seeking mandatory injunction cannot rely solely on circuit's
relaxed likelihood of success on merits standard); SCFC ILC, 936 F.2d at 1101 n.11 (applicant for disfavored
injunction unlikely to satisfy higher standard without proving likelihood of
success on merits).
The same is
true for injunctions that provide the movant with all the relief that could be
obtained at trial. See SCFC ILC, 936 F.2d at 1099 (applying heightened standard to
preliminary injunctions that provide the movant with all relief that could be
obtained at trial). In this context, however, the